AuthorJeffrey Wilson

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Employers have a legitimate and important interest in maintaining an efficient and productive workforce and a safe workplace. Most employers establish rules governing workplace conduct to ensure that employees stay on task and earn their wages. Yet, these rules are often broken, and that in turn increases the need for employers to monitor their employees. Prior to the present era of technology and computers, employer supervision typically took the form of hands-on monitoring, a supervisor patrolling the workplace to make sure that employees were doing their jobs. In some employment settings hands-on supervision remains common place. For example, many manufacturers still employ supervisors to monitor assembly-line workers as they toil each day. In a host of other employment settings, human supervision has been replaced at least in part by technological supervision.

Technological innovations, particularly computers, have drastically altered the nature of the employer-employee relationship. Where once a human supervisor could only monitor employee activity in one place at one time, networked computers now allow employers to monitor nearly everything, nearly all the time, and without employees knowing whether they are being watched. Internet usage can be monitored by employers seeking to compile data about the websites being visited by their employees. Files stored on employees' hard drives can be scanned for format and content. Surveillance cameras can monitor workers' activity throughout the workplace. Telephone lines can be monitored and telephone conversations recorded.

There are two kinds of workplace electronic surveillance, quantitative and qualitative. One type involves monitoring records and analyzes quantitative information, such as the number of keystrokes per hour and the number of minutes spent on the telephone each day. The other type of monitoring analyzes the quality of performance in whatever qualitative terms an employer defines. For example, many employers monitor the content of incoming and outgoing email to make sure the messages exchanged are work-related.

Balanced against employers' interests in maintaining an efficient, productive, and safe workplace are employees' interest in privacy. Workers have a legitimate and important interest in being able to perform their jobs without fear of embarrassment or stigma that might result from an employer's unreasonable intrusion into their workspace. It is also reasonable for employees to expect that their employers will not disclose personal information they obtain via pre-

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employment applications, honesty tests, polygraph examinations, criminal background checks, urine or blood analyses, and the like.

The interests of employers and employees are not always at odds. The quality of the work environment is a concern to both groups. Employees do not generally appreciate having to worry about constant electronic surveillance. Respect for employee privacy is one factor people consider when deciding whether to apply for a job, take a job, or keep a job, and employers generally take heed of this reality. Consistent with employers' goal of maintaining a productive workforce is their goal of attracting good employees and keeping them happy. Accordingly, most employers understand that they must offer a professional work environment in which employees can exercise a certain amount of liberty free from the watchful eye of a supervisor. However, the line separating a reasonable intrusion on employee privacy from one that is unreasonable is often neither clear nor bright, and courts are routinely asked to draw the line for labor and management as a whole.

In the United States the right to privacy traces it origins to the nineteenth century. In 1890 Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy" (4 Harv. L. Rev. 193), an influential article that postulated a general common law right of privacy. Before publication of this article, no U. S. court had ever expressly recognized a right to privacy. Since the publication of the article, courts have recognized a general right to privacy that Americans enjoy to varying degrees in different contexts.

Today privacy in the labor context is regulated at both the state and federal levels by a combination of constitutional provisions, federal statutes, and common law. Depending on the jurisdiction, the laws can regulate both private employees and public employees (i.e., employees working for a governmental entity). Companies doing business in multiple states must stay familiar with the privacy laws in each state.

Federal Law Governing Workplace Privacy

Federal law governing workplace privacy generally falls into two categories, constitutional law or statutory law. There is no federal common law governing workplace privacy, other than the case law interpreting the U. S. Constitution and federal statutes.

Federal Constitutional Law

The Fourth Amendment to the U. S. Constitution prohibits the federal government from conducting unreasonable searches and seizures, and searches or seizures conducted without a warrant are presumptively invalid. The U. S. Supreme has repeatedly held that public employees are protected by the strictures of the Fourth Amendment precisely because they are employed by the government. O'Connor v. Ortega,480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Workers employed by private companies enjoy no such constitutional protection.

The Supreme Court and lower courts have also consistently ruled that the Fourth Amendment...

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