More on Small Business Privacy vs. Security

There are many areas of the employer-employee relationship that raises issues of privacy

One area especially challenging employers today is balancing the security of the workplace versus the privacy rights of employees. “Privacy” is the ability of an individual or group to keep their lives and personal affairs out of public view, or to control the flow of information about themselves.

While privacy per se is not specifically addressed as a protected right in the U. S. Constitution, it is included in some state constitutions. For example, California’s Constitution gives each citizen an “inalienable right” to pursue and obtain privacy. “Security” is the condition of being protected against danger or loss.

In recent years, an inherent conflict between security and privacy has evolved, accelerated by digital and communications technology. Never before have we enjoyed or suffered the ability to so readily gather and use information about individuals or observe their conduct.

The increased ability to eavesdrop in video and audio and to track movement through satellites and radio frequencies have resulted in new legal issues that impact how employers relate to their employees. It is very important, therefore, that an employer’s efforts to maintain the security of its workplace be done in a manner that does not violate the privacy rights of its employees.

Here are some examples of the intersection between privacy and security:

Electronic Communications

Statutory restrictions governing workplace security and employee privacy are found at both the federal and state level. For example, the Electronic Communications Privacy Act of 1986 (ECPA) assesses penalties against any person who intentionally intercepts “any wire, oral, or electronic communication.”

The ECPA, however, also contains a “business use exemption,” allowing an employer to monitor phone calls on an employer-supplied telephone system. In determining whether a specific use meets the exemption, courts generally look to whether a reasonable business justification exists for the monitoring, whether the employee was informed about the employer’s right to monitor, and whether the employer complied with its own policy.

In applying ECPA, some courts have held that monitoring employees’ personal telephone calls exceeds the business use exemption and can be actionable.

Furthermore, some states, like California, do not have a “business use exemption” to its electronic communications laws, but do permit monitoring based on consent. Ln light of these inconsistencies, it is important for employers to issue and distribute formal policies explaining the scope of their monitoring of employee communications and, to the extent possible, obtain employee consent to such monitoring.

Video and Audio Surveillance

An employer may have many reasons to use audio and/or video surveillance systems to monitor its employees. For example, an employer may be concerned about employee safety or controlling company assets. There currently are no specific federal laws governing video-only monitoring. Nevertheless, there have been cases brought by employees under the general right of privacy.

One of the key conditions to prosecuting an action for invasion of privacy is whether or not the person has a reasonable expectation of privacy. Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with video surveillance if the physical space surveyed is a public space. However, federal courts have been divided on whether an invasion of privacy has occurred when the video surveillance is hidden, or when areas generally considered private, such as rest rooms or dressing rooms, are recorded.

For that reason, several states have adopted limitations on employee video and/or audio monitoring, particularly in private areas, such as locker rooms. Other states have adopted statutes requiring notice of video or audio surveillance of employees.