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Privacy in the workplace.

Privacy in the Workplace

New technology revives an old question: Is employee privacy - in voice mailboxes or computer files, for example - protected from the employer's eyes?

As the law now stands, employees have no automatic right to or expectation of privacy as it relates to the equipment of the employer, be it telephones, word processors, computers, facsimile machines, photocopy machines, mail, or any other devices owned by the employer. While the Fourth Amendment prohibits searches and seizures by government agents without probable cause, it does not constrain private person, such as employers. (Some state constitutions do guarantee their citizens a right to privacy that applies to private employers.)

Associations may forbid employees to use any office equipment for personal reasons, monitor compliance, and discipline employees for violations. On the other hand, if the employer by word or deed, action or inaction, gives employees grounds to believe and expect that the association recognizes a right to privacy in the workplace, then the association may be liable for invasion of privacy when it breaches that agreement or understanding.

There are any number of ways you may engender such an expectation. The most common are * giving someone a private office with a door that closes or locks or tolerating restrictions the employee may place on who may enter that office and when; * assigning a filing cabinet, with or without locks, that an employee has exclusive use of and access to; * dedicating a locker that the employee can secure by his or her own locks or other devices; * designating a secure or private telephone line; * allowing employees (even by silence or inaction) to send or receive personal mail at the office; * allowing employees to keep personal property at work; * having written or unwritten policies that advise other employees not to go into one another's offices or work spaces, remove anything, go into desk drawers, or open filing cabinets; * giving employees permission to use office equipment for personal business; and * knowing that employees routinely use office equipment for personal business and not doing anything about it.

An association stands a good chance of defeating any lawsuit based on the employee's "right to privacy" if it sets as policy that * telephones, copying machines, facsimile machines, computers, stamps, mail facilities, desks, filing cabinets, lockers, and everything else are the property of the association; * employees cannot use any of the property, premises, or facilities of the association for their own personal business; * the association reserves the right to enter any person's work space and to open desks, filing cabinets, and so forth to obtain material; * the association regularly or periodically monitors equipment to ensure that it is not being used for personal reasons; and * the association reserves the right to discipline an employee for violation of this policy.

This is not to say that associations should have such a policy. Rigidly enforced, it probably would lead to intolerable situations. The key point is this: If an association wants to make clear to employees that they have no reasonable, legitimate expecation of privacy in the workplace, then it must spell that out.

There are exceptions to the general rule. Employers should be especially careful with drug testing and telephone monitoring.

Employees have been quite successful in challenging employer drug testing policies, especially when testing is universal or random and not confined to individual testing based on reasonable suspicion. Most states regulate and restrict drug testing. More broadly, use caution in any sort of medical testing or situation involving the employee's person. For example, an employer cannot order an employee to undress to prove that he or she carries no association property.

Employers must likewise be careful in monitoring telephone usage. Federal laws that regulate wiretapping and intercepting telephone calls do apply to private persons. An association certainly may have a policy forbidding personal use of its telephones, monitor calls to determine compliance, and discipline employees for violating the policy. However, employees should be advised of the policy, and management should listen in on a call no longer than absolutely necessary to determine whether it is personal or business. Once it is apparent, for example, that the meeting planner is discussing a date last night and not banquet arrangements for the convention, management should get off the phone. Call the employee in to discuss the matter later.

Finally, employers should not deduct anything from an employee's paycheck as reimbursement without clearing it with counsel. An employer who discovers that an employee has run up hundreds of dollars in personal long distance calls, for example, might be tempted to dismiss the employee and deduct the cost of the calls from the final paycheck. Most states forbid such deductions, even in the most blatant cases of theft. You may sue the employee civilly to recover any amounts or take other measures to secure repayment.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1991 American Society of Association Executives
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Author:Webster, George D.
Publication:Association Management
Article Type:column
Date:Apr 1, 1991
Words:823
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