Avoiding Invasion of Privacy Claims

From Employment Litigation and Practices

December 1996

Employers increasingly face issues relating to employees’ privacy rights. Technological advances permit employers more access than ever to information about applicants as well as current employees. Inevitably, clashes have arisen between the employer's business reasons for gathering such information and the applicant or employee's right to privacy.

Four Invasion of Privacy Theories

Generally, there are four theories upon which a plaintiff can assert an invasion of privacy claim:

1. the intentional intrusion upon solitude or seclusion;
2. appropriation of plaintiff's name or likeness for unpermitted use;
3. public disclosure of private facts; and
4. false light.

Of primary concern to employees is the tort of intentional intrusion upon solitude or seclusion.

The tort of intrusion upon seclusion may occur by:

• physical intrusion into a place where plaintiff has secluded himself or herself,
• use of defendant's services to over see or overhear the plaintiff's private affairs, or
• some other form of investigation by examination into plaintiff's privacy concerns.

Liability attaches only when the intrusion is substantial and would be highly offensive to the ordinary reasonable person.

The search of an employee's personal property or locker can constitute the tort of invasion of privacy. The key is whether the employee had a reasonable expectation of privacy. Liability can also attach if an employer opens and reads mails addressed to the employee and marked “personal” or “confidential.” Videotaping of employees without their consent in areas where employees have a legitimate expectation of privacy can also constitute the tort of invasion of privacy. Of particular concern to employers today is the monitoring of electronic mail (“e-mail”) and employee voice-mail.

Creating Clear Policies

Employers can avoid or limit invasion of privacy claims by developing clear employment policies or practices. Prior to establishing any policy the employer should consider the goals and objectives it seeks to achieve through the policy, whether these goals and objectives are necessary to meet its legitimate business needs, and the privacy implication of the policy. The policy should be drafted to withstand challenge based on privacy grounds. Because the critical issue in an invasion of privacy claim is the reasonable expectation of privacy of the employee, the key elements of any employment policy with respect to searches or surveillance is notice and consent.

For example, the policy should state that employee's lockers, offices, mail, packages, etc. are subject to search at any time without notice. Similarly, the policy should state that their telephone calls, e-mail transmissions and voice mail are subject to monitoring. The policy should also inform employees that failure to cooperate in any work place investigation constitutes grounds for discipline, including termination. The employer should also consider obtaining signed written consent forms from the employee.

Once a clear written policy is established, the employer should advise its employees of its policy by conspicuously posting it in the work place, distributing it at orientation programs or training sessions, or by publishing it in an employment manual.

Lastly, and most importantly, searches and surveillances should be limited to the level necessary to achieve employer's legitimate business purpose.

To learn more about employee rights of privacy or to discuss drafting clear employment policies for your business, contact Ellen Boyle at our New York Office.