Electronic Surveillance of Employees

Electronic Surveillance of Employees

DeNorris A. Heard, JD

Law, Ethics, and Corporate Governance – LEG 500

April 24, 2010

Explain where an employee can reasonably expect to have privacy in the workplace.

Privacy rights are granted (if at all) by specific laws, rules, or regulations. Some of those rights apply in the workplace and some don't. Even if there is no specific law, a right to privacy can be based on the legal common law concept of having a "reasonable expectation of privacy”. So the starting assumption for employees would seem to be, they have no reasonable expectation of privacy in the workplace. However, recent court cases seem to suggest that in fact employees may have some expectation of privacy for their personal communications, even when those communications take place using company resources. These rulings address very specific sets of facts, and may not be indicative of any significant retrenchment of employer's rights to monitor employee communications. These cases are also edifying to both organizations and their employees in terms of what expectations of privacy are likely to be considered "reasonable," and clearly spell out the need for businesses to be very explicit in writing policies governing employee behavior, communications, use of company systems and services, and their plans to monitor such behavior and enforce its policies (Hymowitz and Bendana, 2007 p.2).

Determining whether there was a "reasonable expectation of privacy" usually involves a balancing test, and many factors must be considered to decide whether the employee had a privacy right in answer to these questions.

Items to be considered are, for example, the content of the employer's policies and whether employees were put on notice of a lack of privacy, how and whether the policies were regularly enforced, the sort of privacy right involved, the nature of the employer's business interest, the nature of the employee's privacy interest, the type of...