Privacy at Work: What Are Your Rights?

A person has far fewer privacy rights at work than they do in their personal life, but you are sometimes still entitled to some privacy at your job. Employers can usually search an employee's workspace, including their desk, office or lockers. The workspace technically belongs to the employer, and courts have found that employees do not have an expectation of privacy in these areas. This is also the case for computers. Since the computers and networking equipment typically belong to the employer, the employer is generally entitled to monitor the use of the computer. This includes searching for files saved to the computer itself, as well as monitoring an employee's actions while using the computer (e.g., while surfing the internet).

With regard to activities on computers and networks belonging to your employer:

1) Your employer can monitor pretty much anything you access on the company’s computer system, even your personal email account.
2) Assume any email, text message, or other electronic communication you send on your employer’s system can be used against you.
3) People in IT can look at anything, anytime they want to, for any reason they want to. They are agents of the employer, and it’s the employer’s system.

 

Workplace Searches and Interrogations

Federal and state laws govern employee's privacy rights in the workplace. Generally, employers may conduct workplace searches and interrogations of its employees if there is:

1) a reasonable basis for suspicion of employee wrongdoing, or

2) no reasonable expectation of privacy in the item or thing existed.

While most employee privacy rights claims are determined on a case-by-case basis, courts will typically look at the following factors to determine if an illegal workplace search and/or interrogation occurred:

1) Whether the employee was a public employee or a private employee. Public employees have greater protection under the Fourth Amendment;
2) Whether the search was on company or personal property;
3) Whether the workspace was open to the public or other employees;
4) The context in which the search took place;
5) Whether the employer had a clear policy informing its workers that public or personal property was subject to workplace searches.

An employee of a governmental employer may have a constitutionally protected reasonable expectation of privacy arising out of the Fourth Amendment. The Fourth Amendment doesn’t apply to a private employer’s property, on the other hand, when it comes to the relationship between employer and employee. However, there are still common law bases for a privacy interest... (American Bar Association)

Government employers are subject to federal constitutional constraints because their conduct is considered "state action."  Private employers are not subject to constitutional claims unless their investigations become intertwined with a state investigation.  Therefore, a search of an employee's office by a governmental employer is justifiable only "when there are reasonable grounds for suspecting that the search will turn up evidence ... of work-related misconduct, or that the search is necessary for a non-investigatory, work-related purpose such as to retrieve a needed file."- O’Connor v. Ortega, 480 U.S. 709, 716. (Harvard University)

The Federal Law Enforcement Training Center (FLETC) has a paper that discusses: “Warrantless Workplace Searches of Government Employees” (19 pages). If you work for a government agency, it is worth your time to read this paper.

To determine if your privacy rights were violated, ask yourself the following questions:

1) Does the company routinely conduct similar searches?
2) Were you properly notified of a search, or the potential for a search?
3) Was the search reasonable under the circumstances?
4) Was the person conducting the search authorized to do so?
5) Were you held against your will?
6) Did you cooperate with the search or interrogation?
7) Were you were physically or verbally threatened?
8) Was there a clear written policy in place concerning workplace searches?

Moreover, while employees may not have a reasonable expectation of privacy in their work effects, such as computers, desks, and lockers, employees generally have a reasonable expectation of privacy in their personal items, such as purses, briefcases, and luggage. Therefore, employers generally may not search personal items without a court-ordered warrant, for example.

Maintaining a Reasonable Expectation of Privacy in the Workplace

While you are at work, your employer is paying you to do the tasks that you were hired to do. While "limited personal use" of your employer's facilities and equipment may be permitted - it is always best to keep your work activities separate from your personal activities. If you need to make a phone call, check your personal e-mail, or look-up something on-line, use your personal smartphone, tablet, or laptop. Do not use your employer's computers, networks, or telephones for personal activities.

If you do make limited use of an employer's computer or e-mail system, make sure that your activities are encrypted (i.e. encrypt any e-mail you send). Password protect any personal documents that you create (use the Microsoft Office encryption function). Never store anything on your employer's system - your employer may allow you to type a personal letter or e-mail during your lunch break, but it should not be left on your employer's computer system.) - Generally speaking however, none of this personal activity should be done on your employer's time or equipment.

If you bring personal items to work, keep those items in a personal bag, case, or locker. Anything that you store in an employer's desk, locker, cabinet, etc. is subject to search. A personal container (especially one that is locked) has a  greater expectation of privacy than anything provided by your employer. A locked container, in your personal vehicle has greater privacy than anything you bring inside your employer's facilities.

Generally speaking, if you work for a private employer you have few privacy rights in the workplace. To maintain a right to privacy, you must demonstrate an expectation of privacy, and that expectation must be reasonable. If you work for a public employer (government) you have a greater right to privacy because you retain 4th Amendment rights against unreasonable search and seizure by the government (your employer).

The best way to maintain privacy in the workplace if to keep your private activities separate from work. What you do outside of work hours and off of your employers property is generally your private business and may not be monitored by your employer. Employees of government and public entities have a constitutional right to privacy that protects them from most employer monitoring of, or even inquiring about, their off-the-job conduct. For this reason, public employees are largely protected from monitoring. Even in states that don't provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the "seclusion" of an employee. Generally speaking, an employer may not inquire or otherwise obtain facts about employees' private lives. (NOLO Legal Encyclopedia)