With the advent of the internet age, more employers are finding it increasingly convenient to monitor the actions of their employees. It is not unusual now in 2014 to have employers request passwords and URLs to employee personal websites as part of the interview process. This information has not come without employee protests. States have been struggling to keep up with protecting the rights of employees. No doubt as more information becomes available this issue will continue to develop.
Privacy typically involves several issues: intrusion upon seclusion, or an invasion of a private place of an injured party; publicly disclosing private information; false light; and appropriation, or the use of someone’s likeness.
Employers argue that they need the information to monitor employee conduct for the benefit of the business. For instance, employers have an interest in preventing theft and promoting employee productiveness. While there are several issues that can be alleged under such circumstances, one developing area is employee claims of breach of privacy. The main issue in such a case is whether an employee had a reasonable expectation of privacy, so each case will be very fact specific. Courts will look to see if an employer has exceeded its business purpose for the information it collects. Note that the invasion of privacy claim must involve an actual physical invasion into a person’s property or an actual prying into personal affairs. Psychological invasion does not count, as bad manners, name-calling, and offensive behavior are inadequate to support a claim.
The means for gathering information are also subject to invasion claims. For instance, polygraph tests are generally unlawful on employees and employers are prohibited from firing employees who refuse to submit to such tests, according to the Employee Polygraph Protection Act.
The use of credit reports for background checks on potential employees is becoming more common. In recent cases, plaintiff employees believed they were entitled to a copy of their report when the employer used outside investigators to form employment decisions about prospective applicants. Courts have rejected that these reports constituted “consumer reports” under the Fair Credit Reporting Act because they involve interactions between the consumer and the person reporting. Such reports do not bear on credit worthiness or general reputation, something traditional reports will provide. Not only are reports prepared by outside professionals like accountants and attorneys unlikely to be held to be consumer reports, they will likely fall under some other protected privilege when employees seek disclosure of such documents. So far, the case law regarding this issue has been clear: employers should determine the business reason for the need for such information and find the least intrusive way of obtaining it.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases. Consult an attorney in your area for further guidance. If you were injured as a result of employment monitoring please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.