Security vs. Privacy. To ensure a secure environment for all workers, avoid violating the privacy of any one individual - Legal Trends: Practical Insights

HR Magazine, Feb, 2002 by Jonathan A. Segal

First of a two-part series.

Since Sept. 11, employers have focused--quite appropriately--on upgrading workplace security. But security measures will be compromised if employers do not clearly retain the right to search communications moving across their systems, or persons and items on their premises. Employers that fail to secure these rights may find themselves facing the wrong end of an invasion of privacy suit from the very employees they have attempted to protect.

This article discusses preventive steps employers should take to avoid such a clash of rights.

Basis for Right of Privacy

There are several potential legal restrictions on employer searches, including the following:

Constitutional restrictions. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. Generally, the constitution restricts only government action, not private action.

As a result, private sector employers can search employees without violating the federal Constitution. However, some state constitutions have been interpreted to restrict private sector searches. (See, for example, Pettus v. Cole, 49 Cal. App. 4th 402 (Ct. of App. 1996).)

Common law restrictions. Most states recognize a common law right to privacy; these rights apply equally to public- and private-sector employees.

Statutory restrictions. Several federal and state statutes create enforceable privacy rights. For example, the federal Electronic Communications Privacy Act (ECPA), which comprises the federal Wiretap Act and the Stored Communications Act, generally prohibits interceptions of wire, electronic and oral communications. This includes e-mail, voice mail and Internet activities.

Many states also have wiretap laws. Some of these state laws are more restrictive than federal law.

Employee Relations

Even where there are no legal barriers, employee relations considerations remain. While employees appear willing to give up some of their privacy for security, this willingness is not open-ended.

As always, employers must consider how employees will perceive their actions. Employers who go too far, even under current circumstances, risk an employee relations backlash.

Reasonable Expectation of Privacy

Regardless of the legal theory behind a claim, the underlying question is essentially the same: Did the employee have a reasonable expectation of privacy?

To have a viable claim, employees must do more than show they subjectively believed they had a right to privacy. Generally, employees must show that their expectation was objectively reasonable under the circumstances.

We can't completely control our employees' subjective expectations, but we can create the circumstances that determine whether such expectations are objectively reasonable.

Generally, there are three approaches employers can take:

Tell employees they have no expectation of privacy. Simply put, if you tell employees they have no right to privacy, they probably don't. When employers clearly state that there is no expectation of privacy, it's hard to argue that a reasonable person could have such an expectation.

Employer silence. Some employers are reluctant to issue a sweeping statement destroying privacy rights, so they say nothing.

Employers that remain silent do not necessarily lose the right to search. However, in the absence of a clear policy, a jury will decide if employees had a reasonable expectation of privacy. In contrast, if there is a clear policy destroying privacy rights, an employer has a good shot at preventing a case from ever getting to a jury.

Establish privacy rights. Some employers unwittingly take a third approach: Rather than destroy privacy rights, they create them by including statements in their handbooks or other policies saying they respect employee privacy.

While employers should try, where possible, to respect employee privacy, they should not make affirmative statements regarding that privacy.

Recommendation: Employers should destroy employee expectations of privacy by issuing broadly worded search policies.

Some employers avoid issuing separate search policies but rather bury the search statement in another policy--for example, in the policy on workplace violence or substance abuse. This approach may avoid an immediate negative reaction from workers; however, it also may limit the employer's right to search.

For example, if your statement reserving the right to search appears only in your weapons policy, employees reasonably could argue that they believed your right to search was limited to prohibited weapons. In that case, where will you be if you have reason to believe employees are stealing confidential information or selling illegal drugs?

From a legal perspective, employers are better served issuing stand-alone search policies.

When to Search

Employer policies must address when they can search. Generally, there are three options:

Reserve the right to search randomly. Some policies state that the employer has the right to search randomly--at any time and for any reason.