Professor of Law, George Washington University Law School. An earlier version of this paper was presented at the Examining Privacy In the Workplace Symposium held at Louisiana State University Law Center, where I benefited from the spirited comments from all of the participants. I also received helpful feedback from a faculty workshop at the University of Connecticut Law School. I am grateful to Matthew Finkin and Charlie Craver for additional comments, and to Peerepa Joann Moolsintong for research assistance.
At the turn of the twenty-first century, privacy has become the law's chameleon, seemingly everywhere and nowhere at the same time. The recent outpouring of privacy literature touches on many constitutional doctrines, including the mainstay in judicial hearings of the right to abortion, as well as search and seizure under the Fourth Amendment.1 The hugely controversial Patriot Act, passed in the aftermath of September 11th, has stirred up privacy concerns among a broad array of groups, and in recent years Congress has passed numerous laws protecting privacy interests ranging from medical data to financial information and much in between.2
Privacy concerns are seemingly everywhere these days.
Yet, despite all of this attention, the law surrounding privacy, and the basic definition of privacy, retains the enigmatic quality it has always had. Many trace the origins of privacy within the law to the seminal article by Brandeis and Warren entitled, "The Right Page 1036to Privacy,"3 in which they defined privacy as "the right to be left alone,"4 and much of contemporary privacy doctrine flows from a sparse phrase in a concurring opinion to a criminal case, in which the Supreme Court defined the scope of Fourth Amendment protections as premised on a reasonable expectation of privacy.5
In addition to the curious doctrinal origins and grounding in the law, there is an undeniably prurient quality to the idea of privacy which clouds the concept with ambivalence. Although we steadfastly guard our own privacy and expansively define our own private sphere, virtually all of us seek to peer into the private zones of others.
Another curious aspect of the privacy literature, as well as the recent Congressional attention, is that it frequently ignores workplace issues, certainly one of the areas of greatest concern with respect to privacy encroachments.6 Part of this lack of attention is attributable to ignorance of workplace law, but privacy, like so many aspects of the workplace, has also largely been a casualty of the law's obeisance to the employment-at-will principle. As a basic precept, it is difficult to reconcile workplace privacy with the at-will relationship. If an employee can be fired for any reason or no reason at all, as the relationship is often defined, how can an employee assert a right to privacy when he or she has so few rights to begin with? Moreover, within the existing legal framework, so long as an employer provides notice of an intent to restrict an employee's privacy, it is difficult for that employee to claim a reasonable expectation of privacy. Like so much that involves the employment-at-will rule, the typical antidote to invasions of privacy is for the employee to find another job; to exit, borrowing the typology of Albert Hirschman.7
As this brief discussion shows, workplace privacy issues go deeper than simply protecting some private space and I will suggest that the issues surrounding privacy are representative of Page 1037 the broader transformation that has occurred in the workplace over the last three decades_one where the individual has triumphed over the collective, where solemnity of privacy has displaced the power of speech and collective action as a paramount workplace value, and perhaps most important, one in which the employer's power over employees now goes virtually unchallenged. Not only has the power of employers expanded but the reach of the workplace has likewise been extended into what used to be considered private domains. Although many recoiled at the notion (and still do so today), at one time, the slogan "work is for working" reasonably captured the essence of the employment relationship. When one was at work, she worked, but after work was, well, after work. Today, that is no longer true as what is sometimes called the boundaryless workplace8 now entraps employees far from the confines of the workplace and with virtually no compensating benefits.
As a result, when we think about privacy in the workplace today, we run up against what is perhaps the preeminent question of contemporary employment policy: how much of oneself must one relinquish to become an employee? How much of oneself, one's life, does a worker turn over to the employer by agreeing to work for a wage? To get at these questions, we also have to address another, perhaps more fundamental question-what do employees deserve in the workplace? What kind of protection should they have, and how do we get there? Under the old union model, the answer to these questions was relatively straightforward: workers deserved as much privacy, as many workplace benefits, as they could get. But in a world without unions, one that we are dangerously close to today where unions represent about eight percent of the private workforce,9 we must Page 1038 step back and look elsewhere for answers, and invariably, we are likely to arrive at different answers altogether.
Before proceeding further, I should note that this essay is part of a larger project in which I broadly reexamine the employment relationship. I intend this essay to be mostly a normative thought piece, and I am less concerned, at this juncture, about how my vision would be translated into reality. Instead, I want to focus on how we ought to conceive of privacy in the workplace in a way that best protects the legitimate interests of working-class employees. I also want to set forth this vision against the reigning principle of employment-at-will. If we are willing to do away with the employment-at-will rule, we could likely transform the workplace in a significant fashion simply by imposing a just cause requirement, or some other limitation on an employer's power. But it is far more difficult to craft workplace protections for employees against the at-will backdrop, which is what I will seek to do in this brief paper by limiting the definition of employment, rather than seeking to limit an employer's power within that space.
By now, the evolution of the workplace over the last three decades is a well-known tale.10 Rather than retell that story, I want to focus on the way in which issues surrounding workplace privacy reflect the shift from a collective workplace mentality to the individualistic approach that dominates today.
The story that is typically told emphasizes the decline of unions as well as the decline of lifetime employment_the two of which are obviously closely related, although it is also important to note that neither ever fully or accurately defined the workplace. Given the nostalgia we have for a lost era of labor dominance, it is always important to emphasize that at their peak, from the mid-1940s to 1954, unions represented slightly more than one-third of the Page 1039 workforce,11 and the idea of lifetime employment was a benefit largely restricted to white males. Even within that group, many workers never obtained the benefits of steady lifetime employment.
Regardless of its reality, there is little question that the idea of lifetime employment with steady upward progression captured the academic imagination, and I would also suggest that, in an important way, that idea represented the reality of the workplace. Even though unions never represented a majority of the workplace, through much of the 1970s the threat of unionization was real with union density rates hovering at or above thirty percent, and the presence and threat of unions made collective activity the most important employee workplace value.12 By definition, collective activity was primarily public in nature, and necessarily relied on speech and other important First Amendment values, as embodied in the National Labor Relations Act. From this perspective, solitary activity or privacy was far less important to workers than organizing, and this was also true in the non-unionized workplace, where seniority rather than merit often determined promotions, pay, and other workplace benefits. Within the union model, what was important was the ability to meet, to congregate, and to organize, to share information rather than to hide it. While privacy was sometimes important to those efforts, it was at most an instrumental, rather than a core, value_solidarity rather than solitude mattered most.
In that nostalgic workplace, privacy was also of less import because there was less of an opportunity for privacy. When we think about manufacturing plants, auto assembly lines, even a workspace like IBM or Kodak where often only the managers had their own private offices, there was frequently no place to hide, no place for meaningful privacy. While workers have always sought to hide misdeeds from their employers, such as drinking, errors, or theft, no one but the most zealous of employee advocates would see employee privacy interests at stake in such behavior. No one has a right to drink on the job, and no one can hide behind the Page 1040 cloak of privacy when their behavior directly interferes with their work. Rather, the primary question would be how far an employer might be able to go to uncover such behavior (for example, by searching a locker) but not whether the activity itself could be protected. At the same time...