Employee Privacy Torts Research Paper

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Employee Privacy Torts

Issues relating to employee privacy have been at the forefront of businesses for many years. This has been fuelled by the dynamic workplace which changes constantly and also by employees and employers being more litigation-conscious. Technology has also spurred on employee privacy issues with e-mail and the internet being related to heightened concerns about vulnerability of employers to litigation. Many employers have thus exacerbated their concerns relating to employee privacy and especially monitoring of employee behavior. Employee privacy is respected in many of the large corporations. However, there still exist some breaches in employee privacy. Small business owners are at most risk as a result of their increased monitoring practices and close employer-employee interaction.

Historical background

Roberson v. Rochester Folding Box Company

One of the major cases that brought employee privacy to the limelight was Roberson v. Rochester Folding Box Company

Franklin Mills Co. decided to appeal the decision. The appellate found it difficult since there was no precedent for infringement of right to privacy. However, the appellate felt that once the right to privacy had been established as a legal doctrine, it cannot be confined to the publication of a person's likeness. It can, however, extend to comments that are made to a person's looks, habits, conduct and domestic relations. At the same time, it could not be defined as a libel since Section 245 of the Penal Code defines a libel as a malicious publication by effigy, picture or sign that exposes a person to ridicule, contempt or obloquy. In this definition, malicious meant that it had to be intentional and willful. In this case, however, there was no allegation of libel. Therefore the disposition was reversed. In the dissent, the judge stated that there was no enforceable law of privacy.

This case spurred a lot of criticism and public outrage as a result of the NY legislature denying Roberson the compensation. It, however, led to passing of the first statutory law on privacy which made it illegal to use a person's image or likeness for purposes of trade or advertising without their consent. In 1905, Georgia became the first state in the U.S. To recognize a common law or privacy in the case of Pavesich v. New England Life Insurance Co

Pavesich v. New England Life Insurance Company

In 1904, Pablo Pavesich sued New England Mutual Life Insurance Company, Thomas Lumpkin, the company's general agent and J.Q. Adams, a photographer. This was as a result of an Atlanta newspaper, the Atlanta Constitution, bearing a likeness of him that could be recognized by his acquaintances and friends in an advertisement without his consent. Though the picture that was used had been given to Adams with Pavesich's consent, he had not given consent for it to be given to Lumpkin. Additionally, the statements that were alluded to in the advertisement were false and malicious to the plaintiff since he had never made such a statement and had also not taken any life-insurance policy with the defendant company. He argued that he was ridiculed as a result of the advertisement and demanded $25,000 in damages. The trial court argued that there was a misjoinder of defendants and thus no cause of action. Additionally, there were no facts from which malice was inferred. However, in the appeal, the Georgia Supreme Court reversed the judgment and Pavesich was awarded $25,000 in damages since the publication was made without his consent and it contained libelous statements that created the impression that he had a policy with the insurer. The court thus grounded the right to privacy in the doctrine of natural law.

Common law right of privacy

The common law right to privacy states that a person has the right to be left alone or to be free from abuse or misuse of their personality. This right of privacy also states that the person has the right to be free from unwarranted publicity. Therefore they can live a life of seclusion if deemed sufficient. They also have a right to be free from unwarranted interference from members of the public in matters that do not concern the members of the public. In the common law right to privacy, one has the actionable right to be free from any invasion of their privacy. When their privacy is invaded, it is a tort and in common law, the aggrieved person can bring a lawsuit against the person or entity that intrudes into their privacy.

According to common law, invasion of privacy includes intruding into a person's private affairs, disclosing a person's private information, publicizing a person in false light or using a person's name for personal gain. However, for invasion of privacy to be a tort, the matter that is publicized must be of no legitimate concern to the public. It must be wrongful intrusion into a person's private life and there should be some form of harm such as outrage, mental suffering, humiliation or shame.

Public employee's right to privacy

A public employee, in accordance to federal and state constitutional principles, is protected from unreasonable searches of their workplace or belongings by their public employer. The rationale of the search is determined by whether the employee has a legitimate expectation of privacy in the area that is being searched. Generally, a search is deemed to be reasonable for work-related purposes or when misconduct is being investigated. However, the search must be justified when it is being incepted, reasonable measures should be adopted relating to the objectives of the search and it must not be excessively intrusive in relation to the circumstances beforehand. The basis of a workplace search being lawful was established by the Supreme Court in O'Connor v. Ortega (1987)

The fourth amendment of the U.S. constitution provides the restraints to the public employer's search. Other State constitutional considerations also provide restraints. The Fourth Amendment of the U.S. constitution guarantees every citizen the right to privacy, dignity and security against invasive acts by government officers whether a crime is being investigated or for any other reason. According to this amendment, public employers are considered to be government officers and therefore public employees are protected against unreasonable seizures and searches. In the situation where a public employer is investigating workplace misconduct that requires searching an employee's office, reasonable expectation of privacy of the area being searched must be determined. The search is deemed to be lawful if there is no reasonable expectation of privacy. There are two situations that have come into recent proceedings as examples of an employee not having reasonable expectation of privacy. The first is an item that is left in plain view such as on top of a desk and the other is when the company has policies in place that explain to the employees that technology remains the employer's property and thus the employees have no expectation of privacy or confidentiality when using that technology. This was the basis of the decision in City of Ontario v. Quon (2010)

Privacy Act of 1974

The privacy act of 1974 governs the collection, maintenance, use, and distribution of personally identifiable information maintained in records by federal agencies. The act prevents the disclosure of information from a system or records without written consent from the individual. The only exception to this rule is if the disclosure is pursuant to one of the twelve statutory exceptions. These exceptions include the distribution of personal records for statistical purposes such as to the Bureau of Labor Statistics and the Census Bureau, distribution for routine purposes by a U.S. government agency, distribution for archival purposes, law enforcement purposes, congressional investigations and other administrative purposes.

According to the act, all government agencies that have any personally identifiable information to have an administrative and physical security system to ensure that there is no unauthorized release of an individual's personal records. When the information is provided as a result of one of the twelve exceptions, it must be stated under which authority (whether by statute or Executive order of the President) the information is provided. The act also states that the individual can be permitted, upon request, to review his records and have a copy of all or any portion of the information made. The individual can also request an amendment to any record pertaining to them. The privacy act only applies to records held by a government agency. Therefore records kept by executive components of the government, courts or non-agency government entities are not governed by the provisions of the privacy act.

Freedom of information act

The freedom of information act allows for full or partial disclose of information and documents controlled by the U.S. government that were previously unreleased. This act has been adopted by individual states which have varying freedom of information acts. The act provides any person with the right to access federal agency records or information. The burden of substantiating why the information may not be released is on the government. Therefore upon written request, government agencies are required to disclose…[continue]

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