Big employer: 'A study of the continuously decreasing expectation of privacy of employees in the US workplace

Autor:Manuel Martínez-Herrera
Cargo:LL.M. Harvard Law School. Associate at Epstein, Becker & Green

I. Introduction - II. Background Checking - III. Drug-Testing - IV. Wiretapping - V. Video Surveillance - VI. Internet Monitoring - VII. Off-job conduct - VIII. Conclusion: Searching for the Perfect Employee. Limits and Boundaries.


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"The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live - did live, from habit that became instinct - in the assumption that every sound you made was overheard, and except in darkness, every movement scrutinized." 1

I Introduction

Ever since the first version of the "Big Brother" TV reality show2was aired in The Netherlands in 1999,3the show has originated multiple debates raising several privacy concerns in each of the countries where it has been broadcast. The absolute lack of intimacy and secrecy of the contestants, to which, of course, they had previously voluntarily submitted themselves, raises some fundamental questions among viewers and non-viewers alike, as it seems to attack some of the core values of Western civilizations.

In fact, privacy, in one form or another, is considered a fundamental right in most civilized societies. "Yet it is clear that intuitive sensibilities about privacy differ from society to society even as between the closely kindred societies of the United States and continental Europe."4That is to say, although privacy is viewed as an important value on both sides of the Atlantic, its construction and interpretation differs from one continent to the other, as "privacy does not have a universal value that is the same across all contexts."5

Indeed, it has been traditionally thought that the concept of privacy in the US derives from the idea of liberty,6 and especially from the conception of an individual’s home as his/her castle, "where the individual enjoyed a freedom from government intrusion."7 8 It is at home where US citizens feel that they can have an absolute "reasonable expectation of privacy," which is the judicial test used to determine the existence of a possible violation of this fundamental value. However, as they cross their entrance door and abandon the "sanctity of home",9 their expectation of privacy is dramatically reduced. On the other hand, "The core continental [European] privacy rights are rights to one’s image, name and reputation."10, which are rights that citizens

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carry with them wherever they go, and whose protection is not only confined to the boundaries of their residence.

This different view of the same value has also affected the way and degree in which employers in the "Old" and "New World" intrude on the privacy of their employees in the workplace and, in some instances, even outside of it. The purpose of this paper is to show the current state of expectation of privacy for employees in the US workplace by showing the applicable regulation11and relevant caselaw regarding the most important issues (i.e., video surveillance, wiretapping, internet monitoring, background checking, drug testing and off-job conduct). This study is also aimed at analyzing the possible future consequences of these intrusive policies in the workplace12and to offer viable solutions to improve employees’ expectation of privacy.

II Background Checking

Employers, following some procedural safeguards13included in the Federal Credit Report Act ("FCRA"), can request specialized agencies to obtain investigative consumer reports on their applicants or current employees.

These reports may include very extensive information about the employee’s or applicant’s past and current activities.14Moreover, information may be obtained from personal interviews with neighbors, friends, or associates of the employee or applicant.

III Drug-Testing

"In the 1980s, the federal government’s focus on eradicating illegal drug use joined with technological advances making drug testing more affordable and accessible to produce an explosion in workplace drug testing programs (..)."15In fact, under federal law, any employer may implement a drug testing program that tests applicants and employees under any of the following circumstances: (i) mandatory testing of all applicants and employees; (ii) random testing of employees; and (iii) reasonable suspicion testing.

A few states, including, among others, California, Connecticut or Montana, have restricted employers’ rights to drug test employees. Some states may limit the circumstances in which the tests can be performed, while others may only add requirements with regard to the certification of the laboratories conducting the tests.16

IV Wiretapping

Title II of the Omnibus Crime Control and Safe Streets Act of 1968 proscribes the willful interception of any wire or oral communication. However, there are two widely used basic exceptions that allow employers to wiretap their employees’ telephones under certain circumstances:

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(i) The consent exception: it is legal to intercept wire or oral communication when one of the parties17to the communication has given prior consent to the interception. Consent may be express or implied.18

(ii) "In the ordinary course" of the interceptor’s business exception: In order for this exception to apply two requirements must be fulfilled: "(1) the intercepting equipment must be obtained from the provider of communication service or furnished by the user for connection to the facility and use in the ordinary course of the user’s business, and (2) the interception itself must be in the normal course of the user’s business."19

As a result of these two exceptions, most employers are able to wiretap their employees’ conversations in the workplace.

V Video Surveillance

Video surveillance may be a very effective tool for monitoring employee safety, observing employee productivity and training employees by avoiding previous mistakes "caught on tape." However, it is also a very intrusive practice that "can destroy a person’s peace of mind, increase her self-consciousness and uneasiness to a debilitating degree, and can inhibit her daily activities."20 21

US courts generally uphold the use of video surveillance in the workplace, provided it is limited to video images without sound recording. The analysis is, of course, based on the "reasonable expectation of privacy" test. As a result, it is not considered offensive to monitor an area "which is in plain view within an open work area."22 Nevertheless, employers are forbidden from monitoring areas where employees have an expectation of privacy, such as restrooms or changing rooms.

Even hidden cameras of which employees had no prior knowledge or notice have been considered legal as long as employees had no "reasonable expectation of privacy" in the areas where they were installed.23

VI Internet Monitoring

At the federal level,24the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2510-2522, technically protects most electronic communications from interception, disclosure, use and unauthorized access. However, the "Use of computers to monitor employee performance is a natural extension of earlier methods of tracking employees’ work"25 and the actual limitations for employers on controlling the electronic communications of their employers are scarce. Employers providing their employees with electronic services may not only be free to review and disclose already stored employee electronic communications,26but also to monitor such communications after obtaining the consent of the originator or intended recipient of the

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communication.27Such consent does not even have to be express, as many courts will accept implicit consent based on the employee having prior notice of the company’s policy.28

Moreover, under employment discrimination regulations an employer may be liable under the "respondeat superior" doctrine for the creation by one of its employees of a hostile work environment. This hostile work environment may very well be created by one employee sending harassing or racist e-mails to other employees or by displaying inappropriate images or comments on his/her computer screen. Therefore, not only are US employers not discouraged from monitoring the electronic communications of...

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