Respecting employee privacy.

When is it reasonable--and legal--to look into an employee's business on and off the job?

Do you as an employer have the right to gain access to and read personal files on an employee's computer? Can you listen in on telephone conversations to monitor performance? These and similar questions raise the issue of privacy. What rights do employers have to ask about or monitor the actions of employees on or off the job?

You must keep in mind two fundamental rules about workplace privacy:

1. There is no general federal or state law creating or protecting a "zone of privacy" in the workplace. The U.S. Constitution's First Amendment free-speech clause and the Fourth Amendment protection against "unreasonable searches and seizures" apply only to action by the government, not to private-sector employers, including associations. By and large, employees leave their constitutional rights at the workplace door. A few state constitutions do extend speech and search protection to private-sector employees.

2. The key legal issue in privacy cases is this: Did the employer, by what it did or failed to do, create a reasonable expectation of privacy by the employee? If the answer is yes and the employer did not meet that expectation, then it may be held liable for invasion of privacy. Following are specifics about employer rights.

Searches and seizures. An employer may reserve the right to inspect employees' cars, bags, briefcases, purses, and other items. It may also reserve the right to ask an employee to submit to a search--for example, by emptying his or her pockets. Likewise, the employer may search an employee's desk, file cabinet, or locker.

The only exception to this rule occurs when the employer has created a reasonable expectation of privacy. Typical evidence of such an expectation is that the employee has a key to a desk or file cabinet. Also evidence is an association's written policy or unwritten practice of never going into employees' desks or offices.

Monitoring electronics and mail. Listening to or recording telephone conversations is governed by federal law. The basic rule is that while an employer may listen to a telephone call to monitor employee performance or to enforce organization policy, the employer may listen to only so much of the conversation as is necessary to determine whether the call is personal or business. (The same rule probably extends to voice mail, although this area of privacy has not been decided either by litigation or statutory enactment.)

Listening to or recording calls beyond that point may violate federal law, regardless of what association policy says. Federal law allows calls to be recorded if one party agrees; in some states, calls may be recorded only if all parties consent. The best practice is to prohibit excessive personal use of the phones and then discipline employees who violate the policy.

Employers are generally free to gain access to computer files. Indeed, it is standard practice in many associations to back up computer tapes on a regular basis. Of course, if the employer allows employees to use corporate computers for their personal work or business, then it has created a reasonable expectation of privacy and the organization would not be allowed access to employees' personal files.

Employers have a right to open and read mail sent to employees at the organization's address if the mail appears to be business-related. If an employee receives mail that is clearly personal, you may want to err on the side of caution and not open it; at the same time, you should tell the employee not to have personal mail sent to the office and discipline him or her if the practice persists. Your association may also consider not accepting, or simply returning, nonbusiness mail.

Use of electronic mail, bulletin boards, and fax machines is also beginning to raise legal issues. Using the principle that the employer owns its equipment and that only reasonable expectations of privacy are enforceable, one could probably argue that the employer should have access to all electronic mail and faxes. Realizing, however, that employees may not always have control over what outside parties send them, the safer and more practical rule for associations to follow is this: Read only as much of the message as is necessary to determine whether it is business or personal. As soon as you determine that any document in personal, stop reading it and do not give it to anyone else except an authorized person (for example, the chief executive or legal counsel). Then decide what disciplinary steps to take with the employee for receiving personal correspondence at the office.

Surveillance. Employers may conduct surveillance of the workplace, provided it is reasonable. Requiring an employee to show identification or open a purse or briefcase for a guard before entering or leaving the premises is almost certainly legal; so is having cameras at entrances, at exits, and in parking lots or garages. Putting cameras in rest rooms or shower stalls is almost certainly illegal.

Investigations. Employers may conduct investigations of employees, if reasonable and if for legitimate, job-related reasons. These investigations may be background checks or undercover operations to reveal, for example, inside theft, drug dealing, or fraud--perhaps in a workers' compensation or disability case. Maintaining private personnel files. Absent a state statute mandating access, employees have no right to see what is in their personnel files or to dictate what may be put into or taken out of a file. Nor may they restrict access to their files. However, to prevent defamation charges and to promote sound business practice, the employer must limit access to people with a legitimate interest in the materials. State or federal statutes may mandate the confidentiality of medical records.

If the association voluntarily gives employees access to their files through its personnel policy, the policy should contain provisions for confidentiality and non-disclosure of certain information. Even in states that have personnel file access laws, the statutes typically contain an exception for certain types of information.

Testing. Testing, depending on its nature, may or may not be legal. Often, employees successfully challenge in court universal or random drug testing, so these testing practices are not recommended. If an employer observes an employee acting in a strange, erratic, or impaired way, the employer may insist that the employee go home or be tested. Such behavior may also justify a search of the employee's work space for illegal drugs or alcohol.

Polygraph testing is not permitted under federal and many state laws except in some cases--for instance, investigation of theft. Psychological testing is restricted or prohibited in some states.

Monitoring off-duty conduct. No-dating policies, conflict-of-interest policies, noncompetition rules, and antinepotism policies are generally legal, although they should be adopted only for good reasons.

Without a strong business justification, no-dating policies are not recommended. They are difficult to enforce; if enforced, they often result in invasion-of-privacy claims; and employees typically resent and ignore or evade such policies.

The situation is different for a conflict-of-interest policy and a noncompetition rule, which prohibits an employee from going into competition with his or her employer. The association is on firmer ground in adopting and enforcing these.

More than half the states now have laws forbidding discrimination on the basis of smoking off the job.

Pending legislation

H.R. 1900, the Privacy for Consumers and Workers Act, and S. 984, the Senate counterpart, would prevent an employer from monitoring workers through any electronic means without providing written notice. The bill also would prohibit random electronic monitoring of an employee with cumulative employment of at least five years. In addition, the legislation would restrict the use of information collected from monitoring and would allow employees to seek civil penalties for violations against their privacy rights. George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, Washington, D.C.