In episode 9 of the TV show The West Wing, which aired in 1999, White House Deputy Communications Director Sam Seaborn told the President that the next 20 years were going to be “all about privacy.” From the internet (which was 8 years old in 1999), and cell phones (which had been common place for a bit over 10 years), to health records and sexual orientation, he argued that the issues justices were going to be debating for the next two decades would deal with privacy. This scripted conversation regarding a Supreme Court justice nominee showed particular prescience on the part of the show’s writers. At this time, almost twenty years later, privacy issues abound. Moreover, we have privacy issues Sam could not have imagined.
Employers are particularly burdened to balance their employee’s privacy rights against their rights to run their business. Consider the existence of sensors for workspace utilization analysis. Sensors placed in conference rooms and other locations can determine when these spaces are occupied and thereby identify underutilized locations. While this sounds advantageous to large employers with space utilization concerns, consider the use of these sensors placed in individual employee desks to determine when the employees are seated, and how often they get up. Further consider an employee who needs to leave his or her desk or workstation frequently to attend to a disability-related physical need. This likely could otherwise go unnoticed, especially if the employee’s work performance and production were satisfactory. When such absences are captured by workplace surveillance and questions get asked about the employee’s activities, privacy issues can arise.
Employees are tracked using GPS tracking devices in their ID badges, company issued iPads, cell phones, and vehicles. ID badges can be imbedded with microphones, cameras and motion sensors to tell where employees are, who they are talking to, and what they are saying. While companies may be using these devices to enhance efficiency and productivity – employers need to be mindful of the privacy concerns that arise when, for example, tracking or monitoring occurs during non-working time. In those cases the company may be collecting information on its employees for which it has no business purpose and thus, no business justification.
Some employees’ lives are an open book on Facebook and Instagram – but does an employer have a right to view it? What if the Instagram pictures show a memorial for the employee’s mom who died of breast cancer? The employer may now have inadvertently obtained prohibited genetic information regarding their employee, which is protected under federal law.
Even today, privacy law is a developing field. Employers should be mindful of the following guidelines:
- If most people would have an expectation of privacy in a particular location (such as a bathroom, locker room, or changing room), any monitoring/surveillance in that location likely should be placed so as not to capture private activities, or should avoid the location.
- If the company owns the equipment, it probably can monitor activity on that equipment (cell phones, computers, land-line phones, iPads etc.) However, if an employee is using that equipment to access a personal email account, employers should stop any detailed monitoring or surveillance when it becomes clear the communications are personal. Employers likely may, however, monitor and record the fact that the employee was engaging in personal activity on working time.
- The same goes for employee private conversations on company telephones. Monitoring of employee calls is permitted under federal law, as long as monitoring stops when the content of the call is clearly personal. State laws may require consent of all parties (including those calling the company or being called by the company) (called “two side consent states”) before phone calls can be recorded.
- Employers likely can monitor email traffic through the company email server – but there may be exceptions, such as when an employee uses his or her company email account to contact the employee’s personal lawyer. The attorney/client privilege may attach to that communication notwithstanding the fact it is on the company’s e-mail. The company, may, however, be permitted to discipline the employee for personal use of company equipment – provided the company has a policy prohibiting such use.
States may have local privacy laws that also need to be obeyed. Employee consent may need to be obtained for monitoring or surveillance activities. Contact employment counsel to ensure the company is able to balance its ability to have a productive workforce against any privacy rights its employees may have.