Academic journal article Southern Law Journal

Employee Privacy outside the Workplace

Academic journal article Southern Law Journal

Employee Privacy outside the Workplace

Article excerpt

I.Introduction1

The right to privacy is recognized in this country as one of the fundamental rights of all people.2 Nevertheless, in an age of satellite surveillance, video cameras, position tracking, communication monitoring, and electronic surveillance, the opportunities for someone to truly experience privacy are becoming rare. This surveillance is especially troublesome when someone is in a public place like a place of employment. Most employees now accept the notion that everything they say or do at the workplace could be seen, monitored or recorded. However, with advancements in technology, employers are now able to extend their monitoring of employees and their activities beyond the workplace. New technological ability raises the issue of whether employers should be permitted to monitor employees when not at work. At what point does an employer's need to know invade an employee's privacy?

This paper explores the privacy rights of employees when they are not at the workplace. We first examine privacy rights from a constitutional, statutory and common law perspective to identify which privacy rights exist and what actions constitute a violation of privacy rights. In the context of the employment relationship, we then address several different situations or circumstances involving employee activities and conduct outside the workplace to determine whether employer's intrusions amount to an invasion of employee privacy. Identifying the limits to which employers may intrude into the lives of their employees has value not only from an employee privacy perspective, but also from the perspective of an employer wanting to limit exposure to criminal and civil sanctions for violating the privacy rights of its employees.

II.The Privacy Right

The right of privacy doctrine generally dates to 1890 when Louis B. Brandeis and Samuel D. Warren sparked the development of the privacy tort in the United States.3 By 1960, the overwhelming majority of American courts had recognized the right in some form.4 Today, the right to privacy is acknowledged at all levels of our legal system. In the employment context, the privacy right extends to both public and private employees.5

Although the United States Constitution does not have an express provision protecting a right to privacy, the Supreme Court has recognized "zones of privacy" in the various amendments to the Constitution.6 These zones protect two types of privacy interests - the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions.7

The right not to have intimate facts concerning someone's life disclosed without their consent generally centers around the individual's reasonable expectations of privacy.8 The more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny.9 People have high expectations of privacy with respect to medical information, financial information, and sexual orientation.10

However, the right to avoid disclosure of personal matters is not absolute. Disclosure of personal information may be necessary and in the public interest.11 In each case, the court must weigh competing interests to determine whether the intrusion into an individual's privacy is justified.12 Consideration should be given to the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.13

The interest in independence in making certain kinds of important decisions extends to matters such as those relating to marriage, procreation, contraception, family relationships, and child rearing and education. …

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