Employee Privacy
I. Invasion Of Employee Privacy
Most states recognize some form of the common law invasion of privacy tort. For example, New Jersey and Pennsylvania recognize four different tort claims based on invasion of privacy: 1) intrusion upon seclusion or intrusion or into private affairs; 2) public disclosure of embarrassing private facts; 3) publicity which places the plaintiff in a false light in the public eye; and 4) appropriation of the plaintiff's name or likeness.
A. Unreasonable Intrusion -- This type of invasion of privacy tort concerns surveillance, unauthorized physical intrusion into a place where the plaintiff reasonably expects privacy, breaking and entering, unauthorized photography, and use of one’s senses to oversee or overhear the plaintiff’s private affairs. To state a claim for unreasonable intrusion, the plaintiff must show that the defendant’s investigation or examination of his/her private life would be highly offensive to the reasonable person. Unlike other torts for invasion of privacy, a claim for unreasonable intrusion does not require publication of the information obtained. This claim is based on the psychological distress caused by the intrusion regardless of publication or whether any information, embarrassing or not, was obtained.
Defense: Consent -- Consent is a defense. Employers can reduce the likelihood of claims by providing the employee or applicant with notice of the inquiry to be conducted and a signed consent and release form. Employers should also tailor their inquiry and information gathering techniques to include reasonable requests pertaining to job requirements.
B. Public Disclosure of Private Facts -- To make out a claim of public disclosure of private facts a plaintiff must show that: 1) a private fact was publicized; 2) the fact was of a type the disclosure of which would be highly offensive to a reasonable person; and 3) it is not a matter of legitimate public concern. This type of tort is similar to defamation, but easier to prove because there is liability under this theory even when the statement is true. Unnecessary publication of the truth is the essence of this tort. However, publication to any third party is not sufficient to confer liability even though it generally is sufficient for defamation claims. Generally speaking, there is no publicity where the disclosure of private facts was made to only to a small number of people.
Defense: Consent -- Consent is a defense. Because a person may waive his/her right to privacy, the use of releases and consent forms should be considered before the information is gathered as well as when it is subsequently requested by a prospective employer or other party. An employer can reduce its exposure by limiting disclosure of investigative information, including the applicant's history, medical test or screen results, background check results or other private information to as few people as necessary. If the information is obtained as part of the hiring and screening process, then access should, if possible, be limited to those involved in that process. The same can be said of the investigative process. If a prospective employer requests the information, the former employer should request a signed release from the former employee.
C. False Light -- To make out a claim based on false light, the plaintiff must show that a highly offensive false statement was publicized by the defendant with knowledge or reckless disregard of its falsity. A false light claim can also be established where the defendant creates a false impression by knowingly and recklessly publicizing selective pieces of true information.
II. EMPLOYER SEARCHES
Whether a particular search of company or employee property is legal will initially depend on whether the employer is public or private. A public employer’s ability to conduct searches is limited by the Fourth Amendment to the United States Constitution which protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." Because the Fourth Amendment protects private citizens against governmental intrusions, most searches by private employers do not implicate constitutional concerns. However, when an employer is acting in concert with the government, an unreasonable search may give rise to a claim under the Fourth Amendment.
Private employers are not constrained by the Fourth Amendment. Therefore, private employers are generally less restricted in their ability to conduct searches. However, private employers should be aware that the constitutions and statutes of a few states protect employees from unreasonable searches by their employers. For example, the California State Constitution provides a right of privacy for private employees. The New Jersey and Pennsylvania Constitutions have not been interpreted to protect against invasions of privacy by private actors.
A. Locker Searches -- When an employee purchases and uses his/her own lock on a locker provided by the employer for storage of personal effects during working hours, the employee has a legitimate expectation of privacy that the locker and its contents will be free from intrusion and interference. Therefore, mere suspicions regarding the employee will not justify the search of the employee's locker. However, if the employer’s policies make clear that the company has the right to search lockers on reasonable suspicion, the employee has a reduced expectation of privacy in his/her locker and a search of the locker may be justifiable.
B. Residence Searches -- Love v. Southern Bell Tel. Co., 263 So. 2d 460 (La. App. 1972), cert. denied, 266 So. 2d 429 (La. 1972) (former employee may sue his employer when, after an absence of one week from work, the employer's agents broke into his mobile home and found him drunk).
C. Desk and File Cabinet Searches -- The United States Supreme Court has recognized that a public employee may have a reasonable expectation of privacy in his/her desk or file cabinets. A private employer who broke into employee's private safes and desk, and removed private papers of employee did not violate the employee's Fourth Amendment right even though seizure was unlawful, but may have violated his right to privacy. In evaluating whether a search is legal, courts will balance whether the employee's expectation of privacy remains reasonable in light of the employer's legitimate business needs and policies.
D. Vehicle Searches -- Gretencord v. Ford Motor Co., 538 F. Supp. 331 (D. Kan. 1982) (employee may not sue employer for invasion of privacy, false arrest, false imprisonment, or outrage when employer instituted practice of random searches of vehicles leaving the workplace); Terrell v. Rowsey, 647 N.E.2d 662 (Ind. Ct. App. 1995) (supervisor’s search of employee’s car upheld where there was evidence that the employee may have been drinking alcohol on company premises in violation of established policies).
E. Personal Property -- (i e., wallets, handbags, etc.) – An employer’s search of an employee’s personal property, including wallets, handbags or lunch boxes, must be reasonable under the circumstances.
III. TESTING OF EMPLOYEES
A. Drug and Alcohol Testing -- Several states have enacted statutes governing employer drug and alcohol testing of employees and applicants. The statutes differ from state to state, including who is covered by the statute, testing procedures, and how test results can be used (i.e., discharge employee for positive test, refuse to hire applicant for positive test, etc.).
1. Pennsylvania -- Although Pennsylvania does not have a statute governing workplace drug and alcohol testing, Pennsylvania case law supports an employer’s right to conduct workplace drug and alcohol testing. In Pennsylvania, employers may terminate or discipline employees who violate drug and alcohol free workplace rules as long as the employer’s policies are reasonable. Employers must be mindful not to violate the Pennsylvania Human Relations Act’s prohibition against disability discrimination, which may include an employee’s legal use of drugs obtained by legitimate means and recovering drug addicts and alcoholics.
a. Wrongful discharge claims -- Although Pennsylvania recognizes a narrow exception to the employment at-will doctrine for wrongful discharge in violation of public policy, no plaintiff to date has prevailed on a claim for wrongful discharge arising out of an employer’s implementation of a drug and alcohol testing policy.
b. Invasion of privacy claims -- Pennsylvania courts have held that an employer’s right to maintain a drug and alcohol free workplace outweighs an employee’s reasonable expectations of privacy.
2. New Jersey–Although New Jersey does not have a statute governing workplace drug and alcohol testing, case law supports an employer’s right to conduct workplace drug and alcohol testing, but only under limited circumstances. In New Jersey, employers may terminate or discipline employees who violate drug and alcohol free workplace rules as long as the employer’s policies are reasonable. What is considered "reasonable," however, varies based upon whether the drug test was part of a random test or a test performed "for cause." Employers must be mindful not to violate the prohibitions of New Jersey Law Against Discrimination and the federal American with Disabilities Act against disability discrimination, which may include an employee’s legal use of drugs obtained by legitimate means and recovering drug addicts and alcoholics.
B. Psychological Testing -- Many states have enacted statutes regarding use of psychological or psychiatric testing of employees. In Pennsylvania, for example, employers may not use a psychological-stress evaluator, an audio stress monitor or a similar device which measures voice waves and tone inflections to judge the truth or falsity of oral statements without the consent of the person being tested. 18 Pa.C.S.A. § 7507. While New Jersey does not have a specific statute governing psychological testing, these tests may be violative of the New Jersey Law Against Discrimination as discrimination against individuals with mental disabilities. Because the law regarding psychological testing is still developing, employers should consult legal counsel before implementing such testing.
C. AIDS Testing -- Several states have enacted statutes or have local ordinances limiting an employer’s ability to require an AIDS test as a condition of employment, prohibiting mandatory AIDS testing, or prohibiting use of a positive AIDS test result as a basis of discrimination. Thus, before implementing AIDS testing, employers should consult individual state statutes. In addition, the federal Americans with Disabilities Act ("ADA") and New Jersey’s Law Against Discrimination prohibit employers from discriminating against persons infected with HIV virus or AIDS.
D. Polygraph Testing -- The Employee Polygraph Protection Act of 1988 prohibits private employers from directly or indirectly requiring or requesting a lie detector test as part of the job application procedure or as a term or condition of employment or continued employment. The Act contains exceptions for employers authorized to manufacture, distribute or dispense certain controlled substances, for prospective employees of companies whose primary business consists of providing security services, and for federal, state and local governments. The Act permits private employers to request an employee to take a polygraph test as part of an "ongoing investigation" of economic loss (i.e., company property or money is missing), but only if the employee had access to the lost property and the employer has a reasonable suspicion that he employee was involved in the loss. The employer must, however, follow numerous procedural requirements.
E. Physical Examinations -- The ADA addresses issues concerning an employer’s right to request that its employees and applicants submit to physical examinations.
1. Applicants for employment -- generally, the ADA prohibits employers from requiring medical examinations or from making medical inquiries prior to the extension of a conditional offer of employment. However, the ADA recognizes that the employer may need to conduct physical examinations to determine whether an applicant is capable of performing the essential functions of the job safely and effectively. Thus, the employer may condition a job offer on the satisfactory result of a post-offer physical examination or inquiry if such an examination is required of all entering employees in the same job category. If such an examination is performed, the employer may not refuse to hire the applicant based on the results of the examination unless the reason is job-related and justified by business necessity.
2. Existing employees -- an employer’s ability to conduct physical examinations is more stringent with respect to existing employees. An employer may require a physical examination or medical inquiry of existing employees only if it is job-related and justified by business necessity. For example, employers may monitor the fitness of employees who return from medical leave or from workers’ compensation to evaluate whether the employee is capable of returning to work without jeopardizing his or her own safety or the safety of others. Any policy requiring physical examination upon returning to from medical leaves should be reasonable and should consider the type of injury and length of absence.
IV. OPENING EMPLOYEE MAIL
A. Criminal Liability -- The taking or opening of any letter, postal card or package before it has been delivered to the intended recipient in order to obstruct correspondence or to pry into the business or secrets of another person is a federal crime. 18 U.S.C. §1702 et seq. However, there is no private right of action under this statute, meaning that a private citizen cannot sue for violations of the statute.
B. Civil Liability -- An employer does not invade an employee’s or former employee’s privacy by opening mail addressed to the employee or former employee in order to ascertain if it concerns the employer’s business. However, retaining copies of mail once the employer determines that it is personal or opening employee correspondence marked "personal" constitutes an invasion of privacy.
V. CAMERA, TELEPHONE AND ELECTRONIC MONITORING OF EMPLOYEES
The most common forms of electronic monitoring of employees include: 1) closed circuit or video cameras; 2) monitoring and recording of telephone conversations or oral communications; and 3) computer networks, including e-mail.
A. Camera Surveillance -- Restrictions regarding camera surveillance of employees exist under the statutes of some states. However, in a state with no such statute, the employer can defend the use of cameras as an extension of management authority to observe employees. The following guidelines are pertinent to camera surveillance:
1. the cameras should be visible, if this will not jeopardize the investigation;
2. employees should be placed on written notice of camera surveillance;
3. use of cameras in restrooms or other areas that might raise privacy concerns should be avoided or, if essential, used very narrowly; and
4. if the cameras record voices as well as pictures, state and federal statutes and regulations applicable to the interception of oral communications must be reviewed and any expectations of privacy must be evaluated.
B. Telephone Calls and Other Oral Communications
1. Title III -- The Federal Omnibus Crime Control and Safe Streets Act of 1968, popularly known as Title III, generally prohibits the unauthorized interception of wire and oral communications. Title III prohibits the use of listening devices to intercept spoken communications "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." This incorporates the reasonable expectation of privacy law developed under the Fourth Amendment. .
2. State laws -- Most states have enacted legislation that regulates telephone monitoring or recording of conversations.
3. Penalties -- Penalties for violation of Title III include criminal prosecution with up to five years in prison and fines up to $250,000 for individuals and $500,000 for organizations. Title III also authorizes civil actions for actual damages with a statutory minimum, punitive damages, and attorneys' fees.
C. Electronic mail -- In 1986, Congress amended Title III by enacting the Electronic Communications Privacy Act ("ECPA") to regulate new forms of electronic communication, including e-mail, which Title III did not address. For instance, while Title III applies only to oral communications that are sent via common carrier and to communications in transmission, not their subsequent storage on computer, the ECPA protects most electronic communications, including e-mail, from interception, attempted interception, disclosure, use and unauthorized access. The ECPA's reach also extends beyond "common carriers" to include private communication systems operated or subscribed to by major companies.
Some courts already have recognized an employer's right to review employee e-mail. Although employers are prohibited from eavesdropping on telephone calls (except in specific circumstances), employers are not specifically prohibited from reviewing an employee's e-mail communications. This discrepancy has resulted in litigation over how one balances the privacy expectations of the employee with the employer's legitimate need for monitoring employees' use of e-mail.
1. Exemptions Under the ECPA -- The ECPA includes three primary exceptions to the prohibition against interception of electronic communications: 1) an exception allowing interception if one of the parties consents; 2) an exception allowing providers of wire or electronic communication services to monitor their lines to ensure adequate service; and 3) an exception allowing interception if done by a devise provided by the communications provider or subscriber and done in the interceptor’s "ordinary course of business."
a. One Party Consent Exception -- one party to the communication must give prior consent to the interception. The consent exception does not apply if the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution, or the laws of the United States or any State. A party to a communication is one who actually participates in the communication even if that person may not have been the intended recipient of the call.
Limits of the exception -- An employee’s consent will be carefully limited to the confines of an employer monitoring policy. For example, where an employer informed its employees that it would monitor their business telephone calls but would monitor their personal calls only to the extent necessary to determine whether a particular call was business or personal, the court held that this disclosure constituted employee consent only to the monitoring of business calls and not to the full content of personal calls.
b. Provider Exception -- allows a provider of wire or electronic communication service to intercept, disclose, or use that communications in the normal course of his employment while engaged in any activity which is a necessary incident to the provision of his service or to the protection of the rights or property of the provider of that service. A provider of wire or electronic communications may freely access and disclose "stored" communications.
Limits of the exception -- The provider exception has been interpreting broadly to exclude most private employers from ECPA liability for perusing and disclosing employee e-mail communications that were transmitted through employer provided e-mail systems that use an employer’s internal computer system. This broad interpretation gives private employers almost unfettered discretion to read and disclose the contents of employees’ personal e-mails. However, this exception may not exempt employer interception if the employer merely provides for its employees standard e-mail services through a common carrier such as Prodigy, CompuServe, AT&T mail, or MCI mail. In addition, if an employer permits outsiders to use its internal e-mail system, and the amount of outside use becomes significant or the employer charges the outsiders a fee to use the system, the employer might be considered a public e-mail provider, and as such would face special provisions regarding the disclosure of stored communications.
c. Telephone Extension Exception -- allows an employer to monitor telephone use by its employees provided that such monitoring is conducted in the ordinary course of the employer's business (i.e., if telemarketing company routinely monitors telephone calls to evaluate employees’ performance) using ordinary telephone equipment.
2. Penalties -- Civil Penalties for violating the ECPA include preliminary and other equitable and declaratory relief, monetary damages, punitive damages, attorneys' fees and costs. 18 U.S.C. § 2250(b). The criminal penalties include a maximum imprisonment of not more than five years, plus fines. 18 U.S.C. § 2511(4)(a).
3. Invasion of Privacy Claims -- Indeed, many state courts have considered common law claims based on invasion of privacy and intentional infliction of emotion distress, brought against employers that have either monitored or accessed their employees' e-mail. However, there appear to be no cases to date which have found an employer liable for invading an employee's privacy by reading that employee's e-mail messages
VI. DEFAMATION
Generally, defamation occurs whenever a speaker or writer communicates a false statement to a third person and that statement injures the reputation of the person identified in the statement. The defamation is called libel if it is written or otherwise tangible and slander if it is spoken.
A. Elements of Defamation -- To maintain a claim for defamation, a plaintiff must prove:
1. the statement was false;
2. the statement was defamatory in that it harmed the plaintiff’s reputation or deterred persons from associating or dealing with him/her;
3. the statement was published or communicated to a third party by the defendant;
4. the statement applied to or concerned the plaintiff;
5. the recipient of the statement understood that the statement applied to the plaintiff and was defamatory; and
6. the plaintiff suffered harm (in most cases).
B. Defamation Claims Arising from Investigations of Theft -- Defamation is a concern in employer investigations and actions related to employee theft for an obvious reason: any statement that is communicated about an employee accused or suspected of theft raises the possibility of injury to the reputation of the employee. A claim may arise from statements made in the course of the investigation, in interviews, in discussions among security officers, employees and supervisors, in the process of responding to requests for references, during judicial or administrative hearings, in response to questions from the news media or co-workers, or in any other context in which negative information about the employee is communicated.
C. Compelled Self-Disclosure -- Under a theory of compelled self-disclosure or defamation by self-publication, the former employee claims that he was forced to reveal the former employer's reasons for terminating him -- reasons the employee maintains are false and defamatory -- when applying to a new employer because those were the reasons that the former employer cited at the time of termination. Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876 (Minn. 1986) (four employees awarded $515,000 for compelled self-disclosure). Not all courts accept this theory, but employers should, at a minimum, recognize this risk.
D. Defenses
1. Privilege -- Individuals who communicate privileged information cannot be held liable for defamation even though the employer communicated information that is false and defamatory provided the requirements of the privilege are satisfied. Privileges are either absolute or qualified. An absolute privilege precludes a civil action against the person making the statement regardless of the truth or falsity of the statement, the injury caused, or the motives of the person who made the statement. A qualified privilege covers statements made in good faith, without bad motives, and is given only to persons with a legitimate business interest in the information.
a. Absolute Privilege -- Statements made in the course of judicial proceedings and in pleadings filed in a judicial proceeding are absolutely privileged in most, if not all, states. If the statements were not relevant to the judicial proceeding, at hand or were made in the context of pre-litigation settlement discussions, then the privilege is qualified, not-absolute, under some states' law. For example, when a party to a judicial proceeding makes a statement outside the courtroom, i.e., a press release or news conference, it is not absolutely privileged.
Under both New Jersey and Pennsylvania law, any communication between an employer and an employee concerning disciplinary issues, warnings or termination are also absolutely privileged as long as the communication only involves the employer and the employee. This is true regardless of whether the employer’s allegations of misconduct are true or false and regardless of the employer’s actual motive for termination.
b. Qualified Privilege -- In many states, employers have a qualified privilege from liability for false statements made to persons with a legitimate common interest in the subject matter of statement. In New Jersey and Pennsylvania, the essential elements of a qualified privilege are: a) the person who publishes the defamatory statement has a legitimate reason for disclosing the information; b) the persons to whom the matter is published have a legitimate need to know about the information; and c) a recognized public interest is involved.
Most states apply a qualified privilege to communications made as part of internal investigations, provided that publication is not made to persons who do not have a legitimate interest in the information.
2. Statutory Privilege -- A number of states have enacted statutes that shield an employer from liability for disclosing information regarding former employees to a prospective employer unless the employer lacked good faith in disclosing this information and this lack of good faith is shown by clear and convincing evidence.
3. Truth -- The truth of the alleged defamatory communication is always a possible defense.
Personal Property
For example, a Pennsylvania court has held that an employer’s requirement that employees occasionally submit to searches of their lunch bags upon leaving the employer’s premises was reasonable because the employer had a valid interest in trying to prevent its employees from leaving the employer’s premises with company property.
Tips to Avoid Claims under the ECPA –
a. A carefully crafted e-mail policy can provide the necessary notice to employees that e-mail is not private, and that by using the e-mail system, they are consenting to have their use monitored.
b. The e-mail policy should inform employees of the fact that the e-mail system is owned by the employer, provided for business purposes and may be monitored when the employer deems it necessary.
c. Make sure the e-mail policy does not carve out certain privacy expectations of employees. For example, the use of passwords or certain security levels on e-mail may give an employee a belief that certain communications will be strictly private, and that only a limited degree of consent is implied in any notice. The capacity to delete files or purge messages similarly may supply a level of unwarranted comfort to employees who do not realize that certain deleted and purged files may actually remain on most computer systems. Again, a carefully worded policy can eliminate such a false expectation of privacy.
Tips to Avoid Defamation Claims -- Employers should follow several rules designed to preserve the protection of the privilege:
1. Statements about employees should be limited in scope to the purpose of the common business interest at stake. Excessive publication or needless repetition of the statements should be avoided and may dilute and ultimately destroy a privilege that would otherwise apply. Publication to co-workers who do not have an interest in the matter may be fatal to the privilege and should be limited or avoided, if possible.
2. Employers should take appropriate steps to ascertain the facts before making statements.
3. Fellow employees or supervisors who may have had a personal problem with or animosity toward the subject employee should be cautioned and should not be assigned the responsibility of publicity responding to any inquiries.
4. Employers and their representatives should avoid any tendency to be colorful in the descriptions of the subject employee and should remain factual at all times. Limit statements and, in particular, employment references to information that can be verified and documented. Limit the statements to those that are relevant to the job involved and to the questions asked by the prospective employer or to another person's need to know. In particularly sensitive cases, one may want to receive the questions and respond in writing only.
5. Obtain full consent or release from the employee for the purposes of references and investigations.
