EMPLOYMENT LAW | BACK TO PRACTICE AREAS
FREQUENTLY ASKED QUESTIONS

I. Overview
II. Federal Regulations
III. Employee Rights
IV. Privacy Issues
V. Independent Contractors
VI. Unions and Collective Bargaining
VII. The Hiring Process

Privacy Issues

The introduction of new technologies has complicated the state of workplace privacy law. Technology is vital to modern business, and it makes it easier than ever for employers to monitor workplace communications and behavior. A number of employers utilize technology to monitor the use of e-mail and the Internet by their employees. The Supreme Court has decided that this monitoring is legal, despite established law that protects other forms of communication like private conversation and mail. Certain physical spaces, such as locked desk drawers or storage lockers, are also protected. Activities such as drug use allow the employer to legally test their employees. If you are uncertain if your privacy has been violated, or whether a procedure is legal, you should contact an attorney with experience in employment law. Your lawyer can determine the validity of your employer’s privacy policies.

There are several aspects of employee privacy that should be explored in more detail.

• Monitoring of computer usage. Employees have little privacy protection when using an employer’s computer or network. Any e-mails sent or received using an employer’s network are considered the property of the employer. Employers have the right to view and monitor employee e-mail usage, and many employers archive all e-mails for review. These archived e-mails are often introduced as evidence of employee misconduct during legal proceedings. Employers are also allowed to track their employees’ use of the Web, to place time limits on Web usage, and to block websites.
• Monitoring of phone calls and voicemails. Employers are allowed to monitor business-related calls, but they are not allowed to monitor personal telephone conversations. The Electronics Communications Privacy Act (ECPA) only allows the monitoring of personal calls if the employee is informed and consents. Employers are also barred by the ECPA from deleting or reviewing voicemail messages.
• Drug testing. Employers are allowed to require employee drug testing under some circumstances; state law varies widely on the issue. Generally, employers are allowed to test workers if:
• The employee’s job is dangerous or can present danger to others.
• The employee is or has previously enrolled in drug rehabilitation.
• The has been involved in an accident and drug use was suspected.
• Management has reason to believe the employee is using drugs, based on behavior or physical evidence.

These employee rights must be weighed against the employer’s right to monitor and conduct their business. If you have a concern about workplace privacy, either as an employee or employer, you should contact an attorney with experience in employment law.

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