Employment Records, Monitoring, and Testing
The workplace is where most adults spend roughly half of their waking hours. It is not surprising, therefore, that employment practices affect a broad range of privacy rights. With the exception of polygraph testing, there are few areas of workplace activities that are covered by the U.S. Constitution or national privacy laws. Accordingly, employers have a great deal of leeway in collecting data on their employees, regulating access to personnel files, and disclosing file contents to outsiders. In addition to the issue of personnel files, workplace privacy involves such practices as polygraph testing, drug testing, computer and telephone monitoring, and interference with personal lifestyle. All of these practices stem from a combination of modern employer concerns -- employee theft, drug abuse, productivity, courtesy and the protection of trade secrets -- and technological advances that make it more economical to engage in monitoring and testing. The result for employees, however, is a dramatic increase in workplace surveillance. Unprecedented numbers of workers are urinating into bottles for employer-run, drug-testing programs. Phone operators for most telephone companies, airlines, and other service industries never know when a supervisor will be listening in. Thousands of data entry operators have their every keystroke recorded by the very computers on which they are working. Surveillance is so thorough in some offices that employers can check to see exactly when employees leave their work stations to go to the bathroom and how long they take. Polygraph tests caused well-documented misery and abuse for American workers for decades, and only in 1988 did Congress bar the use of lie detectors in most private sector workplaces.
Despite the general absence of federal protection for worker privacy, there are some important limits on employers, due mainly to a variety of state constitutional provisions and statutes and the emergence of a "common law" right to privacy that creative attorneys are invoking on behalf of employees who have been victimized by intrusive practices. In fact a study by the