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There may be circumstances in which you have a claim against your employer for invasion of privacy, but your rights to do so may be quite limited. The legal term “invasion of privacy” can signal a variety of scenarios, many of which are dependent on a particular state’s laws.
However, invasion of privacy with respect to employment generally refers to a situation in which an employee feels that an employer has violated his or her rights to privacy by obtaining and/or disclosing information gained from a source in which the employee had a reasonable expectation of privacy.
For instance, an employer might be liable for invasion of privacy if a female employee discovered that the employer had installed surveillance cameras in a locker room or restroom, and was regularly viewing the footage from the cameras. On the other hand, an employee would be unlikely to have a cause of action against an employer who has read his or her email communications. Again, the outcome of these cases might differ from state to state according to the applicable invasion of privacy laws.
Since today’s business world almost always uses technology to some degree, employers have recently instituted policies about employee email in the workplace. Does your employer has a written policy in place advising you that your email communications may be monitored? If so, it is likely that your employer has the right to monitor, review, and read all of your email communications, particularly if you are using a workplace computer and/or a business email account.
If your employer has a different type of policy regarding this issue in place indicating that employees have some expectation of privacy in their email communications, then the employer’s right to read your email may not be absolute. Even so, whether an employer has an email policy or not, your employer is likely within his or her rights in reading your email.
As employees increasingly have access to computers and the Internet as a function of their jobs, the issue of Internet usage while at work has become an important issue in terms of employee discipline and the drafting of employer policies. In most circumstances, an employer has the right to ensure that you are using the Internet for the specified purposes needed to conduct the functions of your job. An employer can monitor the websites that you visit, observe the amount of time that you spend online during business hours, and even restrict your usage of the Internet to certain websites and/or hours.
Unlike most types of electronic communications, an employer’s right to monitor personal telephone conversations is limited by federal law. The Electronic Communications Privacy Act (“ECPA”) prohibits employers from listening to employees’ personal telephone conversations or voicemail messages in the workplace, whether the calls are made or received on a work telephone or an employee’s personal cell phone. An employer also is potentially liable under the ECPA if he or she deletes or prevents an employee’s access to voicemail messages. However, the ECPA does not prohibit an employer from limiting an employee’s personal telephone conversations at work, such as requiring that employees make personal telephone calls during breaks and lunch hours.
Whether you can use your computer at work for your personal communications and other non-business purposes depends on your workplace policies regarding this matter. However, even if your employer permits you to use your computer for your personal matters, you should have no expectation of privacy as to the contents of your computer or your email accessed via that computer. Generally, an employer has the right to monitor your computer usage, whether it is for business or personal purposes, including your email, any websites that you frequent, chat history, and any other personal information stored on your computer.
Under normal circumstances, your employer is not entitled to access your medical records and/or history. However, there are situations in which your employer may validly access your medical history. For instance, some sorts of jobs require that you be in a certain physical and/or mental condition, such as law enforcement jobs, or positions within the military; for these types of jobs, you may have to disclose information about your medical history, and perhaps even undergo a physical or mental examination.
Likewise, if your employer is subject to the requirements of the Family and Medical Leave Act (“FMLA”), and you request leave pursuant to the FMLA due to a serious medical condition, some states require that you obtain a doctor’s certificate outlining your medical problem and its impact on your ability to work.
In some cases, yes, your employer may be able to discipline you for comments made online, even outside of business hours. While negative postings about your employer may be legal and permissible under the First Amendment, your employer may be able to discipline and even discharge you if you are openly critical about your employer.
Many states consider most employees to be at will, which means that you can be discharged for any reason other than an illegally discriminatory reason. Another reason for discipline or discharge by your employer in this situation is if you divulge confidential information from your workplace in your web page or blog. If an employer finds that you have violated a stated workplace policy regarding confidentiality of information, you are likely to be subject to discipline or discharge.
Your employer generally can use selected types of surveillance in the workplace, so long as there is a legitimate business purpose for doing so. For instance, employers often security cameras for the safety of their workers and customers, in order to discourage theft and other crimes by workers or customers, and/or to ensure that workers are not engaging in inappropriate or unproductive behavior.
Further, some states have laws that restrict or prohibit the usage of certain types of surveillance devices in the workplace; furthermore, surveillance is not usually permissible in certain areas, such as restrooms or employee changing areas. Additionally, your employer typically is required to tell you that surveillance is present in your workplace.
It depends on your state’s laws, your employer’s policies, and the nature of your job. For instance, if you hold a position involving law enforcement and/or national security, an arrest for discharging a firearm while intoxicated, even if it occurs outside of work hours, would definitely be problematic.
Moreover, if you are a licensed professional, you may be subject to sanctions not only by your employer, but by any licensing board that governs your profession. For example, a real estate agent or a doctor who engages in criminal activity outside of work hours may be disciplined not only through the criminal justice system, but also may have a professional license suspended or revoked.
Have you been discriminated against by a potential or current employer -- as a job applicant or current employee? To best protect your legal rights you should discuss your situation with an employment lawyer. Meet with a local employment attorney sooner rather than later to protect your rights.