Confidentiality & Privacy

Employers, in general, have the right to ask prospective employees about various aspects of their backgrounds. Once hired, employers have a right to monitor employees during the course of the workday. An employer's right to monitor an employee is not, however, without bounds. In fact, there are laws in place that forbid an employer from being overly invasive. The key for any employer is to know when the monitoring crosses the line and becomes an invasion of privacy. Understanding what violates an employee's right to privacy is one step an employer can take in guarding against possible lawsuits.

Privacy violation lawsuits are based on a variety of claims. The most common involve:

• Deception and confidentiality breaches
• Telephone conversation, internet use and email monitoring

Of course, not all privacy invasions will have these attributes. Any employer that engages in or is planning to engage in an employment practice that seems as though it could result in a privacy invasion should seek the advice of an attorney. An attorney will be able to provide the counsel and advice on the boundaries within which the practice must remain to avoid liability exposure.

Deception and Confidentiality Breaches

Basically, if an employer is going to investigate an employee, the reasons for the various aspects of the investigation must be truthfully presented to the employee and cannot go beyond what was presented. For example, if an employer is going to do drug testing on a urine sample taken during a work-related medical examination, the employee has to know about it. Similarly, if an employer requests that an employee complete a confidential health questionnaire, the questionnaire cannot be shared with future employers and probably should not be shared with any one other than those individuals consented to by the employee. Employers should be particularly careful about the results of employment related medical examinations, as both federal and state laws provide special protections for medical records. Personnel files should be treated like any other private company records, which means that they should be kept in locked files with restricted access.

Telephone Conversation, Internet Use and Email Monitoring

The key to successful monitoring is to make sure that it is not secretive or unduly intrusive. Generally, employers may monitor work-related telephone calls. The Electronic Communications Privacy Act ("ECPA"), however, provides major limitations. Under the ECPA and a variety of state statutes, employers are not allowed to monitor personal calls unless the employee knows about it and consents to it. Whether the ECPA prohibits employers from listening to personal voicemail messages is still unclear.

Employers are generally allowed to monitor and restrict employee Internet usage. Email may also be freely monitored for business purposes. An employee may have a greater chance of prevailing in a privacy invasion case, however, if the employer provides mechanisms for making email messages confidential and makes representations that the email will not be accessed.

Even though an employment practice may not technically violate an employee's privacy, which does not mean that an employee will not sue. Generally, an employee should know and understand the extent to which he or she will be monitored, investigated, or examined. That being said, it is the employer's duty to honor whatever assurances of privacy have been made. It will be difficult for a disgruntled employee to argue an invasion of privacy when there could be no expectation of privacy.

To read and printout a copy of the Form please link below.

Form: Am I Invading the Privacy of My Employees?

You can download a free copy of Adobe Acrobat Reader here.

Copyright © 1994-2006 FindLaw, a Thomson business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

View Previous Months' Selections