Do your employees have a right to privacy when they’re at work?
The answer is: It depends.
So said speakers at the Society for Human Resource Management’s Employment Law & Legislative Conference March 18, 2010, in Washington D.C.
“For the most part, we [employers] can pretty much look at whatever we want,” said attorney Michael Childers, assistant professor at Johnson & Wales University in Charlotte, N.C. “Nonpublic employees generally have no federal constitutional right to privacy in their employment.”
Constitutionally, however, “public employees have the Fourth Amendment protection,” said Cynthia L. Gibson, J.D., SPHR, senior vice president, legal, at Scripps Networks Interactive Inc., based in Cincinnati.
She cited the case of Ontario, Calif., Police Sergeant Jeff Quon. He sued the city, claiming that it violated his privacy rights under the Fourth Amendment to the U.S. Constitution and the California Constitution by reviewing text messages sent from and received by his electronic pager in 2002. In December 2009, the high court agreed to review the decision of the 9th U.S. Circuit Court of Appeals, which sided with Quon after his superiors read explicit text messages he sent to his wife, his girlfriend and another officer. The police department obtained the transcripts of the messages while investigating officers who had repeatedly run up monthly overages for text messaging.
Although the city had a general computer usage, Internet and e-mail policy, “the department had no policy around text messages so the court ruled he had a reasonable expectation of privacy,” Gibson said.
“Your policies need to be very specific,” she noted. “The more specific your policy can be, the better off you’ll be.”
Employees do have a reasonable expectation of privacy at work in certain situations, Childers said. Examples include:
Use of and access to an office that is exclusive to the employee.
Use of restrooms, showers and changing rooms.
Closed personal luggage, handbags, briefcases or other personal containers.
Locked areas in control of the employee (locker, briefcase, lunchbox, etc.).
However, there is no reasonable expectation of privacy when an employee is aware of a policy regarding the employer’s right to search and inspect its property (such as computer equipment or an office) or when the employee volunteers access to the employer, or if the employee has abandoned personal property.
Employers have the right to make reasonable searches as well, Childers said, but only when justified. Examples include the necessity to:
Retrieve materials available only in an employee’s office while he or she is away.
Identify and safeguard government property and records.
Investigate work-related employee misconduct.
Respond to reliable tips regarding unlawful activity.
As for physical searches, the thing to remember, Childers said, is that the “more personal the search, the more likely it will be deemed unreasonable.
“Physical searches of people [are] really not a good idea,” Childers added. “We as employers—we don’t have that right.”
Generally, HR needs to “make sure your policy covers everything it needs to cover and make sure it’s signed by the employee.” More important, he noted, “make sure you’re enforcing that policy equally on everybody—from the CEO to the janitor.”
Aliah D. Wright is an online editor/manager for SHRM.
Supreme Court to Argue Privacy of Workers’ Text Messages, SHRM Online Legal Issues, December 2009