In order to maintain a productive workforce and protect company property, employers today may seek to access employees’ and applicants’ personal and private information or monitor employee activities during working hours and nonworking hours. Such monitoring can extend to the use of email, phones, computers and social media, as well as workplace searches and video surveillance. Further, employers may seek to conduct drug tests or background checks and gain confidential information about employees and applicants.
However, employers should proceed cautiously. Before taking any action that could potentially invade an employee’s right to privacy, an employer should always consider whether there is a legitimate business interest in monitoring employees that outweighs employees’ privacy rights. In order to avoid invasion of privacy claims by employees and applicants, employers should follow these top tips:
- Respect Employees’ Reasonable Expectations of Privacy. Employees generally expect that certain topics and areas of their life will remain private – such as information regarding their personal lives, as well as time spent in restrooms, dressing rooms, etc. Therefore, an employer should strive to avoid intruding upon employees’ reasonable expectations of privacy and assure employees that truly private information and activities will remain protected.
- Advise Employees of Any Monitoring. While employers may seek to monitor employees’ workplace activities or activities using employer-provided property and equipment, employers should advise employees of any monitoring that may compromise or intrude upon an employee’s privacy. Doing so will protect the employer and minimize the chances of an invasion of privacy claim. Further, employers may want to have employees acknowledge in writing that they are aware of the employer’s monitoring efforts.
- Respect and Protect Employees’ Personal Information and Confidential Records. Employers should take special care to protect and respect employee privacy in personal information and confidential records. For example, employers should only inquire about job-related qualifications and information during the hiring process and only conduct medical testing, drug testing and background checks if there is a legitimate business need, such as for a safety-sensitive position. Further, once this information is obtained, an employer should carefully protect it and limit the number of individuals who have access to it.
- Comply With All Laws Affecting Employee Privacy. Employers need to be aware that there are a number of laws on the federal, state and local levels affecting employee privacy and limiting an employer’s right to monitor an employee’s private activities. Some federal and state laws limit an employer’s ability to monitor employee activities and electronic communications while others cover background checks, preemployment testing, and employees’ medical and health information. Employers need to be aware of these various laws and comply with them at all times.
Guest contributor Beth Zoller is a Legal Editor for XpertHR, an online compliance tool geared toward HR professionals covering all aspects of the employment relationship and providing reference material as well as practical guidance, such as how to guides, supervisor briefings and model policies. As a Legal Editor, Beth uses her prior experience as a practicing employment attorney to cover employee privacy, discrimination, affirmative action, harassment, retaliation, and employee handbooks, conduct and work rules.