Labor & Employment Law Articles

Employees' Rights to Privacy: Does It Exist?

You need some documents an employee is working on, but she is out of the office. Do you have the right to go through that employee's desk to look for the documents?

A factory worker tells you that he thinks one of his co-workers has a gun in his locker. Do you have the right to inspect the locker?

A clerical employee complains that another employee is spending a lot of time using his computer to shop online. Do you have the right to inspect the computer's cache to verify the accusation? Assume that the complaint relates instead to another employee who visits pornographic sites on the Internet. Does that make any difference?

You believe one of your employees is secretly looking for a new job. Do you have the right to listen in on his phone conversations on your extension?

Merchandise is missing from your warehouse. Do you have the right to secretly install a video surveillance system to monitor the movements of your employees?

The surprising truth is, in New York State, there is basically no legally recognized right to privacy in the workplace. Thus, an employer has the right to search an employee's desk, locker, or computer cache. One exception is that a company cannot generally intercept or disclose the contents of wire or electronic communications of an employee without the employee's prior consent. Absent that, you cannot listen in on or tape your employees' telephone conversations. That would be in violation of the Federal Wiretapping Act. You may however engage in silent video surveillance of your employees. However, if you add a microphone to the camera, it would become unlawful.

Another exception is that, under the Americans with Disabilities Act, an employer cannot disclose medical information it has obtained concerning its employees. We recommend that employers put any medical information they receive on employees in a separate file other employees have extremely limited access to.

Despite the wide latitude given to employers in monitoring employee conduct, an employer should adopt policies and procedures dealing with these situations to avoid allegations of discrimination and harassment. The employee handbook should contain statements setting forth the company's policies on searching lockers and desks, surveillance, telephone monitoring, and Internet and e-mail usage. For example, just as your employee handbook would contain a statement prohibiting sexual harassment in the workplace, it should also make clear that it is against company policy to use e-mail to harass employees sexually or in any other unlawful way. Your company policy prohibiting the display of offensive materials should be clarified to prohibit offensive screen savers and visiting pornographic Internet sites. Thus, if an employee complains about another employee's screen saver, your failure to act could lead to a claim that a hostile work environment exists.

Your company policy prohibiting or limiting the use of personal telephone calls at work should be broadened to include the use of e-mail or the Internet for personal use. Employees must be made aware that computers and the software on the computers are the property of the company and are only to be used for company business and that they have no privacy rights when it comes to the use of e-mail and the Internet. In short, your company policies need to be updated to provide for the technological changes in the ways we communicate today.

You may also wish to consider prohibiting employees from installing their own software on your computers to eliminate lost productivity and claims of copyright infringement. There have been cases where companies have been held responsible for allowing employees to install unauthorized software on their computers.

If you would like our assistance in developing e-mail and Internet policies for your company, please do not hesitate to call upon us.