Understanding Privacy in the Workplace

Patrick Devine recently penned the following column for Inside INdiana Business about privacy at the office. It's a worthwhile read for employers and employees alike, and may help you get a better understanding of where privacy begins and ends in the workplace dynamic.

My wife and I recently decided to complicate our daily routine by buying a puppy. The time came to pick up the adorable little nipper from the breeder whose location is about a two-hour drive from our home. The breeder generously offered to shorten our trip by meeting us at a highway rest stop. She included in her email that we could still opt to drive to her house as she "has nothing to hide." Did she really mean that? Being a curious and suspicious soul (aka an attorney), I chose to see the "kennel." My immediate thought after the visit was that when someone tells you they "have nothing to hide," they probably have something to hide.

When an employer is conducting an interview of a prospective employee, or a work place investigation, or simply monitoring the company’s email system, the employee may say: "Go ahead, I have nothing to hide." Does this "green light" change the equation for balance between the employer’s legal and the employee's privacy rights? An employee's expectation of privacy in the workplace can become a thorny issue. Most thorn-pricks can be avoided if the employer has well-written policies that are provided to the employee and are enforced consistently and are consonant with the employer's business interest, the type of information involved and the level of intrusion needed by the employer. This is referred to as managing the employee’s expectation of privacy.

The laws and regulations protecting employee privacy rights are too numerous to list here. One obvious example would be the expectation of privacy in certain employee medical information created under the Health Insurance Portability and Accountability Act (HIPAA). Another example are the federal and state laws that address an employer’s right to access and monitor employees’ use of the company’s electronic communication systems.

With greater technological access to both work-related and personal information about their employees, employers should comply with any notice and consent requirements, and distribute policies consistent with the laws. A relatively recent issue is employee-owned tablets and devices connected or synced to the employer’s network. This creates a situation where the employee should be advised of the trade-off between expectations of privacy of their personal information on their devices and access to the employer’s network.

Again, the employer can limit the possibility of claims of invasion of privacy by properly managing employees’ expectation of privacy.

As for our puppy, I definitely "have nothing to hide" from the neighbors when I race out of bed in the middle of the night to take him outside to do his "business." The cold January wind whips right through what little I had time to throw on before puppy has a mistake on the floor.