Corner Office: Employee Privacy Rights

July 31, 2001 -- While doing the laundry you find a note in your son's pocket that suggests he may be using drugs. Do you ignore it? Do you ask him about it when he gets home? Or do you rush to his room and search for evidence? What if instead of a note you find a permit to buy a gun?

The answers aren't easy. If you ignore the evidence someone could get hurt, or worse. Your son's grades, reputation and health are at risk. But if you search his room you risk shattering his trust in you and undercutting any willingness he might have to discuss difficult topics with you. Unfortunately, these are dilemmas faced by parents every day.

Managers face them, too. On the one hand you have a responsibility to protect employees and company property, including equipment, data and money. But getting results demands communication, and employees are less likely to talk with someone they don't trust.

Surveillance in the Workplace

The issue is further complicated by the fact that the workplace privacy issue is far from crystal clear. All of us struggle with where the right to privacy begins and where it ends because there is no single authority on the topic. There isn't a single word in the U.S. Constitution about privacy, yet the Supreme Court has ruled there is a "penumbra" of rights that address the issue. Yet because the Constitution restricts government action, decisions on privacy rights in the workplace involving the Constitution apply mostly to federal employees. That hasn't stopped many states from including guarantees to privacy in their constitutions that apply to private employers. And privacy standards have been shaped by state and federal statutes and regulations and by court decisions.

By now that may sound like enough to send you running from the room. But stay with us, because there are ways to balance employees' right to privacy with your rights to protect people and your company's assets.

Taking Action

Establish expectations. Ironically, the less your employees expect privacy the less likely you are to have a problem. Practically speaking, low expectations mean employees are not disappointed or surprised by their employer's actions. Low expectations also provide the legal defense often needed if there is a lawsuit. Employee handbooks, job application forms, written policies and contracts should all carefully set forth your right to inspect, search, test and check for illegal substances and objects, illegal activity, and improper use of company equipment (including computers, telephones, desks, lockers, locks and e-mail) consistent with applicable laws.

Focus on business reasons. Just because you can search an employee's desk doesn't make it a good idea. If employees feel their privacy is invaded they may feel distrusted and angry, and morale may suffer.

There's no reason to even think about conducting a search unless you have evidence or a strong, verifiable reason to believe that:

Employees are stealing.

Employees are using company equipment improperly.

Employees are engaged in illegal activity (such as selling or possessing illegal drugs).

An employee's safety may be at risk.

Don't mistake suspicion for a reason based on objective fact. Always have a compelling reason based on objective fact to jeopardize an environment of trust.

Consider doing a search only as a last resort. First, try old-fashioned detective work and simple questioning of employees; that's often enough to "crack the case" if you think there's a problem.

Stay out of employees' private lives. Don't ask employees about their marital status, the health of their personal relationships, or other issues unrelated to work performance.

In addition, it's usually best not to try to regulate employee's off-duty activities. Some employers, for example, have tried to dissuade employees from parachuting or bungee jumping (for fear of injury and, therefore, expensive medical claims). Others have sought to keep employees from moonlighting or from participating in events that the employer feels may cast it in a negative light (marching in a political protest, for example). But 28 states now limit such restrictions, and four (California, Colorado, New York and North Dakota) ban any employer restrictions on lawful activities after hours.

-->

Bob Rosner is the co-author of the No. 1 Amazon business best-seller The Boss's Survival Guide (McGraw-Hill, 2001), along with Allan Halcrow, former editor of Workforce Magazine and Alan Levins, senior partner of San Francisco-based employer law firm Littler Mendelson. Rosner is also founder of the award-winning workingwounded.com and RetentionEvangelist.com. He can be reached via fax at (206) 780-4353, and via e-mail at: bob@RetentionEvangelist.com.

ABCNEWS.com publishes a new Corner Office column every Tuesday.