An employee's right to privacy has become a ubiquitous topic in employment law. Employees are allowed a reasonable expectation of privacy when at work, but there are a whole host of federal, state, and local laws that come into play whether we are discussing personnel records, electronic communications, drug and alcohol testing, and even an employer's access to employee medical records.
Below you will find a brief explanation of the types of issues that can arise when managing employees and attempting to stay within the bounds of privacy laws. For more information, see FindLaw's Employment and Human Resources section.
Employers should carefully research local employee privacy laws. While the Federal Electronic Communications Privacy Act provides some protection for workers, the types of monitoring that may be conducted vary widely from state to state. Check the law in your state before beginning telephone, camera, computer or any other type of electronic monitoring.
Employers are generally free to set reasonable guidelines concerning neatness, dress, appearance, and hygiene. However, such codes are always in danger of legal attack, usually on the grounds that they are discriminatory or violate a person's right to privacy. In some states, employers requiring uniforms may be required to supply or compensate employees for the uniform. Check the law in your state before setting guidelines.
In most states, employers may discipline or terminate employees for off-duty behavior that might embarrass the company or disrupt its operations, though some methods of obtaining information about off-duty conduct may infringe on privacy rights. Some states, such as Michigan and Illinois, restrict employers from gathering information regarding an employee's off-duty behavior. Check the law in your state before taking any action against an employee.
Drug and Alcohol Testing
The Supreme Court has upheld an employer's right to test employees for drugs and alcohol. However, some state and local governments have passed laws prohibiting testing, and the subject is always bound to raise privacy law issues. Check on the laws in your state before planning a testing policy.
Lie Detector Tests
The federal Polygraph Protection Act protects most American workers from taking a lie detector test as a condition of employment or continued employment. In many states, however, the law does not apply to applicants with law enforcement agencies, persons in sensitive positions relating to national security, or applicants with drug manufacturers and distributors.
Psychological and Personality Tests
Federal law does not prohibit an employer from requiring an employee or prospective employee to take a psychological or personality test. However, check the law in your state before requiring any candidate or existing employee to take such a test.
Private employers may generally conduct on-premises searches of employer-owned vehicles, equipment, desks, lockers, briefcases and other items. In most states, searches of an employee's personal items may be legal if the employee had a reasonable expectation of privacy. Public employees enjoy constitutional protections that guard against many kinds of searches.
Employers: Getting Legal Help
With the number of different issues that can arise in relation to employee privacy, it'll be important to seek legal advice from a knowledgeable employment law attorney. A skilled attorney will be well-versed in the various, overlapping employment laws and can help you draft policies to meet your small business needs.