Employee privacy torts and workplace legal protections

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 records asked for unless they are able to lawfully withhold them from disclosure under one of the nine exemptions. If they are unable to lawfully withhold the information asked for, the act allows a complaint to be lodged in federal court since the right to access is enforceable.

The exemptions to this act are documents that are classified as secret because of national defense or foreign policy, documents related to internal personnel rules and practices, documents exempted by other statutes, trade secrets, confidential or privileged commercial or financial information, privileged inter and intra-agency memorandum, documents that would clearly lead to invasion of personal privacy, documents complied for law enforcement purposes, documents related to SEC regulated financial institutions and those which contain exempt information regarding gas and oil wells.

The act, however, does not apply to records held by the federal judiciary or the U.S. congress. It also does not apply to state or local government agencies, private businesses or individuals. This is the major reason why each state has varying statutes governing public access to their records. However, under the act, an agency can only respond to requests for records that it has created.

Property searches in the public sector

O'Connor v. Ortega

Magno Ortega, a doctor in a state hospital in California brought a law suit after Dr. Dennis O'Connor, the executive director found inculpatory evidence in the doctor's officer while he was on administrative leave pending an investigation of alleged misconduct. Some of the evidence uncovered was later used to impeach Dorothy Owen who had testified on behalf of the doctor at the hearing where he was appealing her dismissal, though unsuccessfully.

In O'Connor v. Ortega (1987), the court was split three ways on the issue in the case. Four Justices used a new sui generis approach to the reasonable expectation of privacy in the workplace in combination with the special needs exception that allows for reasonable workplace searches to be conducted without a warrant. Under this approach, the amendment rights in the Fourth Amendment are less applicable in the government workplace. Therefore public employees lose their right to privacy if they share their workspace with other employees or if there is a workplace policy in place that states that they have no right to privacy. This view was rejected by one Justice who stated that the Fourth Amendment rights were as applicable in the government workplace as any other place though the exceptions still applied. Four other Justices stated that the Fourth Amendment rights were as applicable in the government workplace as any other place, but rejected the exceptions to this rule. Since it was a 5-4 split, judgment was passed in favor of O'Connor and proceedings were held to fix damages. The court held that the realities of the workplace made a person have expectation of privacy when the search was being conducted by a supervisor instead of by a member of law enforcement. The court, however, upheld that there was a particular standard of reasonableness which was sufficient for workplace searches.

City of Ontario v. Quon

In City of Ontario v. Quon, a similar situation arose where police seargent Jeff Quon alongside other officers had sued the city. Quon had been exchanging messages with the other officers and sued their superiors and the pager service provider. They alleged violation of their privacy. Their primary defense was that they had been promised that the pager messages would not be audited if they reimbursed the City of Ontario for fees incurred when character limits were exceeded. The judgment was made in favor of the City of Ontario. The argument was that the Fourth Amendment rights of the employees had not been violated since the search of text messages was reasonable since it was motivated by work-related purposes and was not excessive in its scope. They argued that even if the three arguments placed in O'Connor v. Ortega were considered, the privacy of Quon was not violated.

Private sector employees property searches

Private sector employee rights are slightly different to those enjoyed by public sector employees. This is because the Fourth Amendment does not regulate the actions of private sector employers. Therefore, the employee has no right protecting them against searches and seizures conducted by private citizens or organizations which are not acting on the government's behalf. However, the Fourth Amendment does provide protection against warrantless searches being conducted by law enforcement officers. The law enforcement officers are not allowed to search personal property belonging to private employees without a valid search warrant. They can, however, get third-party consent of the employer or owner which allows them to enter the workplace and search without a warrant. Therefore, though the employee has a reasonable expectation of workplace privacy, the employer has broad third-party consent rights to search or let a law enforcement officer search the workplace. In this way, the employer has more legal authority to conduct a workplace search since they own the workplace and the Fourth Amendment rights do not apply to them. Some states have, however, provided the same privacy rights enjoyed by public employees to private employees. Many states, however, do not have laws that explicitly require employers to follow the same procedure when performing workplace searches.

The private employer is allowed to search the employee's clothing or other possessions when they are investigating theft of company property. However, there must be a legitimate reason for the search meaning that an item must be believed beyond doubt to have been stolen. The employer thus cannot conduct random searches of their employees without any reasonable suspicion of workplace misconduct or theft. In general, the employer is allowed to search locked file cabinets, desks or even personal property. However, in the case where an employee is required to purchase their own lock to guard the items stored in their locker, courts have ruled that searches in these areas are a violation of employee rights. Therefore in this situation the employee has reasonable expectation of privacy which is why they purchased their own locks. Courts have also argued that the search areas must be reasonable to the particular circumstance. For example if it is deemed that a computer has been stolen, it would not make sense to search purses, wallets, handbags, pockets or clothing since the computer is too large to be hidden in these areas.

In the situation where an employer has a clearly written policy that requires random and unannounced searches to be conducted, the employee relinquishes their right to privacy. This is because the policy acts as a notice of random and unannounced searches. However, the rationale behind the search may lead to the search being deemed as illegal, especially if the searches disregard other rights to privacy enjoyed by the employees. A good example of this is strip searches.

Refusal of a search cannot be deemed to be a valid reason to dismiss an employee. In Borse v. Piece Goods Shop

Invasion of property

Confidentiality of medical records

Health and medical records are considered to be highly sensitive. This is why they are protected by law. The Health Insurance Portability and Accountability Act (HIPAA) set the national standards relating to privacy of health records. HIPAA, however, only applies to medical records that are kept by health care providers, health clearing houses, health insurers, and health plans and only in the situation where the facility conducts some of their transactions electronically. The act regulates the use and disclosure of protected health information which is defined as any information that is held by any of the listed entities in relation to provision of health care, payment for health care and their health status. The individual also has a right to request for the information. According to the act, the listed entities are required to disclose these protected health information to the individual within 30 days of their request.

The act, however, allows the listed entities to disclose protected health information when it is required to facilitate treatment, payment or other health care operations even without express authorization from the patient. All other disclosures require express authorization from the individual. When the information is provided without the individual's authorization, it is important for the entity providing the information to make all reasonable efforts to disclose only the minimum necessary information to achieve the purpose for which the information is requested. Even when information is provided, the entities are required to notify the individual of the uses of the information and all disclosures should be documented.

As in the privacy act, HIPAA allows individuals to request that any of their information that is inaccurate is corrected. It also requires the entities holding such information to take all reasonable steps both administratively and physically to ensure that the information is held confidentially and that all communication with the individuals is also confidential. A privacy official must also be appointed to handle any complaints and make sure that the privacy policies and procedures are followed.

Listed entities are also allowed to disclose information to government authorities regarding abuse, neglect or domestic violence, to legally authorized health oversight authorities, for judicial and administrative proceedings, for law enforcement purposes, to funeral directors, coroners or medical examiners for the identification of the deceased or to help in the autopsy process, for research or for workers' compensation claims without express authorization from the individual.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) also provides right to privacy for individuals covered by the act. Under the act, any information pertaining to an individual's privacy should be held confidentially. This includes organizations to which the information is provided such as employers, educational institutions or other institutions which may require this information to facilitate support for persons with disabilities. These organizations should also only request for material that verifies the disability and helps them to plan for appropriate support services. In situations where this information needs to be shared with other individuals for purposes of providing supportive services, only minimum information that achieves this purpose should be provided. The act allows this without express permission from the individual. However, no medical records relating to the disability should be released without express permission from the individual.

As in the provisions of HIPAA and the privacy act, the ADA also allows for individuals to request to view and to get copies of their records as well as to request for review of their information. This review, however, needs to be conducted in a confidential manner so that only those who need to know the information are allowed to review it. In addition, the organization should take appropriate physical and administrative steps to ensure this data is held confidentially.

Motor vehicle records

The driver's privacy protection act of 1994 prohibits disclosure of personal information provided to the Departments of Motor Vehicles and any other authorized recipients of these information without the express consent of the individual being referred to. However, it does allow for several permissible uses of the information without consent. One is the use of the information by any government agency in conducting its functions. Second is for use in connection with driver safety, motor vehicle safety and theft. Other permissible uses are by employers, insurance companies, private toll transportation facilities, licensed private investigation agencies, other uses authorized by state laws, for providing notice to owners of towed vehicles, for use in connection with any judicial or arbitration matter, for use in statistical reports and other research, for bulk distribution or surveys, in response to requests from the motor vehicle departments, and for the normal course of legitimate business by a legitimate business or its employee, agents or contractors when they need to verify or correct the information.

Unreasonable disclosure of private facts

Several states allow individuals to publish private facts about another person. This refers to information about a person's personal life that had not been previously revealed to the public and is not of legitimate public concern. The publication must also be offensive to a reasonable person even though they may be true. However, the law does protect individuals for publishing information that is newsworthy regardless of whether the person wanted the information to be disclosed or not. Protection is also offered to individuals who publish information that is already exposed to the public despite it being private especially information from court records that are publicly available.

Publication of private facts amounts to invasion of privacy and is a tort. For a publication of private factors to be invasion of privacy, four elements must be proven. The first is public disclosure which means that the facts must have been disclosed to the public. This means that the information must be communicated to the public at large or to many people at once so that it becomes public knowledge. When information is published on a website or blog or other publicly available platform on the internet such as social media, it satisfies this element. However, when the information is conveyed privately via email or text message to two or three people, it does not amount to public disclosure. This only becomes the case when the defendant is able to prove that the information was not meant for further dissemination to the general public.

The second element is that the information must be a private fact. This means that the information must be an intimate detail of a person's life that they wanted to keep private and was not generally known. The argument here is that the plaintiff has no expectation of privacy when the information is publicly known. Therefore, discussion or republishing of information that someone else had already made public cannot amount to publication of private facts. This was the issue in Steinbuch v. Cutler

The third element is offense. This means that the plaintiff must prove that the publishing of the facts was highly offensive to a reasonable person with ordinary sensibilities. The last element is that the information must not be newsworthy meaning that it is not a matter of legitimate public concern. This is tricky to prove, however, over the years, courts have ruled that publisher have the right to publish truthful information on a matter of legitimate public concern and that there is legitimate public interest in all recent events relating to prominent figures. In Diaz v. Oakland Tribune

In the case of Diaz v. Oakland Tribune, Toni Ann Diaz, president of a student body, sued Sidney Jones, an Oakland Tribune columnist for writing and publishing embarrassing facts about Diaz being a transsexual. Diaz claimed the column was malicious and caused physical and emotional stress. Diaz had gone to great lengths to hide that she was born a man and underwent an operation to become a woman. This malicious piece was published alongside another that mentioned Diaz to be in connection with misuse of student funds. The court held that though Diaz's misappropriation story was newsworthy, her transsexual status was neither newsworthy nor public information. Therefore she had a right to keep it private. Diaz was awarded $725,000 in damages.

Intrusion on seclusion

Intrusion on seclusion is also a form of privacy invasion. It only applies to the situation where a person physically or otherwise intrudes upon the seclusion or solitude of another. Four elements must be established in this case. The first is lack of authorization to invade the private affairs of the plaintiff. The second is that the invasion must be offensive to a person who is reasonable. The third is that the intrusion must involve a private matter and the last is that the intrusion must cause some form of mental, physical or emotional suffering to the plaintiff. If a defendant negligently allows a third-party to intrude into a plaintiff's affairs, they may be held liable for the intrusion. For intrusion upon seclusion to be proven, the plaintiff should have reasonable expectation of privacy in their seclusion. This must be subjective and objectively reasonable. Intrusion upon seclusion claims are handled differently in different states since each has their own definition of intrusion upon seclusion.

Video and audio surveillance.

In order for a prima facie case against video or audio surveillance to be established, the plaintiff is required to prove that the video cameras or tapping devices were a form of offensive intrusion made by the defendant and was either negligent or intentional, violates the privacy of the plaintiff and caused some form of harm. Courts have ruled that tapping a person's phones or planting a hidden camera in a person's home is clear intrusion. A good example is Nader v. General Motors Corp

Katz v. United States

Cramer v. Consolidated Freightways, Inc.

Cramer v. Consolidated Freightways

Monitoring employee telephone conversations and email

Email and telephone calls monitoring

No law disallows employers from monitoring employee telephone and email conversations for reasons related to their main business or to protect the company from any liability that may arise. Employers are liable for acts committed by their employers during the normal course of employment according to both common law and the anti-discrimination legislation. Therefore to avoid being liable for action whether negligent or intentional by their employees, employers are not legally disallowed to reasonably monitor employee conversations.

The law also allows for legally binding contracts to be formed through oral or telephone conversations and written conversations via email. This may also be another source of vicarious liability on the side of the employers. Employees who are dishonest may also attempt to disclose trade secrets and other confidential information through email and telephone conversations. Employers may also need to record telephone and email conversations to monitor employee performance and to ensure that a faithful record of interactions is made to ensure customer satisfaction. Since these are not embedded in law, they remain as grey areas and thus monitoring is a controversial subject since employees view it as being invasive, stressful and distracting.

Electronic Communications Privacy Act

The Electronic Communications Privacy Act (EPCA) which comes from the Omnibus Crime Control and Safe Streets Act and is commonly known as the Wiretap Act makes it illegal to intercept any electronic, wire, or oral communication with two exceptions. The first is when at least once party has previously provided consent to interception and the other is when the interception is being done by an employer for a legitimate business reason. For consent to qualify, it may be either express through a written agreement or implied for example in company policies where the employee is notified that all telephone and email conversations will be monitored for training or quality purposes. However, an employer who does not have such policy is disallowed from creating one and informs employees that it might start monitoring calls. For business related purposes, the employer is allowed to record employee telephone calls without consent provided it is within normal business-related reasons. This exception, however, does not allow an employer to listen in to a personal conversation beyond the point where the employer is able to determine that the conversation is personal. This came from Watkins v. L.M. Berry Co

Many states also have their own statutes that prohibit listening in on telephone and email conversations. Many of these statutes are modeled along the Wiretap act though some are more restrictive and require consent at all times. There have been several cases that have shone light on employee monitoring issues. In Simmons v. Southwestern Bell Tel Co.

Another case was James v. Newspaper Agency Corp.

Electronic communication services

The EPCA also allows employers who provide electronic communication services to access any messages stored in their telephone or computer systems without express consent from the employees. However, the employer must exercise reasonable policy in monitoring. The EPCA, however, prohibits continuous monitoring. Law experts suggest selective monitoring which will reduce the chances of litigation from since it does not monitor all conversations rather only those conversations that meet certain conditions. The company also needs to develop a monitoring policy and explain it to their employees clearly up front. The law, however, prevents employers from monitoring private emails sent on a private email account though they may be sent from a work computer. This was the issue in Stengart v. Loving Care Agency, Inc.

Remote computing services

Remote computing services are covered by the EPCA since the employer owns the remote computing services and is thus allowed to access any communications on them even if they may be personal.

Text messaging services

The case of City of Ontario v. Quon is the latest development in monitoring of employee text messages. In this case, it was argued that since the employer had clearly stated that employees would pay for characters above the allowed limit, the company was allowed to monitor the text messages though personal in order to find out how much the employees should refund for exceeding characters. However, the courts ruled that other provisions of the EPCA also applied to text messaging.

Deal v. Spears

In Deal v. Spears

Drug testing

Government employee testing

Over the years, local governments have increased their interest in testing of their employees in order to detect use of drugs and alcohol. Governmental employees, however, are protected by constitutional rights. Drug tests by government employers constitute a search which is protected under the Fourth Amendment rights. Therefore for one to be conducted there must be a probable cause and a search warrant is required when the situation does not fit the exceptions. Among the first cases to deal with government employee drug testing was National Treasury Employees Union v. Von Raab

Patchogue-Medford congress of teachers v. Board of education

In this 1985 case, the Patchogue-Medford school district

Testing in the private sector

Private employers have more freedom concerning drug testing of their employees. However, this should only be done after many factors are put into careful consideration. These include applicable statutes and regulations, insurance and contractual requirements. Some employers require their employees to undergo drug testing as part of the pre-employment checks. Drug testing is not regarded as a medical examination under the ADA. Therefore it can be conducted at any stage of the selection process. Such testing is deemed to be constitutional even though there is no reason to suspect the prospective employee of drug use. In this case, however, all prospective employees should be tested and not just a few individuals singled out. In certain states, however, these tests are only limited to when the employee has received a formal offer of employment. Many statutes and federal laws do not have provisions on the financing of these tests. However, many employers assume this burden. When such tests are conducted, the results should be treated as confidential since they are medical results and may cause invasion of privacy or physical and emotional distress and defamation.

Under the Drug-Free workplace act of 1988, private employers are not required to conduct workplace testing. However, certain federal grants require employers to ensure workplaces are drug-free and thus provide provisions for drug testing. Employers can test their employees when there is reasonable suspicion of drug use.

Jakubowicz v. Dittemore

Jakubowicz

Testing procedures and methods

For a workplace drug test to be constitutional, there must be reasonable suspicion of drug use by the particular employee. Reasonable suspicion includes direct observation of physical symptoms of drug use or drug use, abnormal conduct, evidence of tampering with results of previous tests, erratic work behavior, or evidence of use, possession, or transfer of drugs while in the workplace. Samples collected must be collected ethically meaning that the employee should be given privacy when asked to urinate. Courts have argued that it is important to put safeguards against tampering with urine such as listening to an employee as he/she urinates, requiring employees to wear hospital gowns, dying toilet water or checking urine temperature. It is, however, illegal for an employer to fire an employee without giving them a second chance through rehabilitation. However in Borse v. Piece Goods Shop, Inc., it was argued that since the company was in an employment-at-will jurisdiction, the employer could discharge the employee at their own discretion with or without cause unless there was some contract. Therefore the company was constitutional in discharging Borse for refusing to submit to a drug test.