Employees have the right to keep their private data confidential and to a certain degree of personal space. An employer who reveals private facts or lies about an employee may be held liable for invasion of privacy or defamation. It is important to note that the rights of employees in the private sector are covered by state laws, case law, and collective bargaining agreements. The issue of employee privacy can arise in a number of situations. For example, employers may want to monitor telephone conversations between employees and customers to evaluate employee performance and customer service.
Employers may also want to monitor email for valid business reasons, drug test their employees, or search their lockers for illegal drugs. The fourth and fourteenth amendments provide the constitutional basis for the right to privacy of public employees. However, these changes do not apply to employees in the private sector. The Electronic Communications Privacy Act (ECPA) amended the federal wiretapping law to apply to email communications. In the case of public employees, the employer can generally search the office, desk, or filing cabinets because the employer's interests in the oversight, efficiency, and control of the workplace have been considered to outweigh the employee's privacy interests. The Federal Omnibus Testing Act for Transportation Employees covers certain classes of employees in the airline, railroad and trucking industries.
These employees are subject to random drug and alcohol testing. The right to privacy was first recognized by the Supreme Court in Griswold v. Connecticut. The Court established a constitutional guarantee of several privacy zones as part of the fundamental rights guaranteed by the Constitution, such as the right to freedom of expression and the right not to be subject to unreasonable searches and seizures. The Constitution protects people from unlawful invasions by the state or an entity acting on behalf of the government. Therefore, federal, state, and local employees are protected, in their right to privacy, from governmental intrusion and excess. For a registry to violate the Fourth Amendment, that record must be considered unreasonable, unjustified in its inception, and inadmissible in scope.
The irrationality of a record is determined by weighing the extent of the invasion and the degree to which the employee should expect privacy in this area with the employer's interest in the safety of their workplace, the productivity of their workers, and other work-related concerns. When an employee is detained during a search, the employer can file a lawsuit for unlawful imprisonment. It is not necessary for the employee to be “locked in” in confinement to be able to immobilize him, but if the employee can leave freely at any time, there is no unlawful imprisonment. The Fifth and Fourteenth Amendments also protect the right to privacy of government employees since the state cannot restrict their rights unless justified. When the State attempts to violate something that has been determined to be a fundamental right, that violation or restriction is subject to strict scrutiny by the courts. The right to privacy is not absolute; it varies depending on the extent of intrusion and balancing with employer interests. Information requested under Privacy Act or Freedom of Information Act is subject to a balance test between need-to-know information and employee's interest in privacy. Thirty-seven states have laws that allow interception by state and local law enforcement officers for certain types of criminal investigations.
All state statutes are subject to federal laws regarding employee privacy rights.
