The idea that individuals have a constitutional “right to privacy” dates back to the 1965 decision of the U.S. Supreme Court in Griswold v. Connecticut. In that decision, the Court held that married couples have a right to privacy concerning their use of contraception; that is, the government has no right to obtain from couples information as to whether or not they use contraceptives as a requirement for them to receive certain government benefits. This right was held to exist even though there was no federal or state statute governing the issue, but was determined by the Court to stem directly from the federal constitution.
In the years since Griswold, federal courts have recognized that public-sector employees may have constitutionally protected privacy rights with respect to their government employers in two types of situations: (1) where an employer conducts searches or seizures of an employee or the employee’s work area or property, and (2) where an employer may disclose personal information concerning an employee to other persons.
- Unreasonable searches and seizures
The right of employees to be free from unreasonable searches and seizures by their public sector employers is derived from the Fourth Amendment to the U. S. Constitution. The Fourth Amendment is probably more familiar to you as the source of the legal requirement that law enforcement officers generally cannot search a criminal suspect’s person, home, or other property without first obtaining a search warrant signed by a judge. To obtain such a warrant, officers must establish that there is probable cause to believe that the suspect has engaged in criminal conduct, and that a search of the suspect’s person or property would disclose evidence of the suspect’s criminal actions.
With respect to searches and seizures by a public-sector employer, the Fourth Amendment does not require that the employer first obtain a search warrant. However, two requirements are generally placed on the employer to ensure that the employer’s actions are not unconstitutionally unreasonable. First, the search or seizure must be justified at its inception. This means that the employer must have reasonable grounds for undertaking the search or seizure, for example, reasonable grounds for believing that a particular employee engaged in work-related misconduct and that the search will produce evidence of this misconduct. Second, the employer must actually conduct the search in a reasonable manner. This requirement would prohibit, for example, conducting a strip search by a police officer of an employee who is only suspected of stealing inexpensive office supplies. The requirement might also prohibit a search of an employee’s property or work area where there is no reasonable belief that searched-for objects will be found in that property or work area. It will require balancing the extent of the invasion, the employee’s expectation of privacy and the employer’s interest in maintaining security and productivity in the workplace. Before a search is conducted of an employer owned property, a formal written notice should be provided of the intent to search “without” their consent. If the property is not owned by the employer, the search has to be with the consent of the employee.
- Employer disclosure of employee personal information
While the right of public-sector employees to be free of unreasonable searches and seizures under the Fourth Amendment is fairly well-established, it is still uncertain whether public-sector employees are protected by the U.S. Constitution against unwarranted disclosure of personal information concerning them. This uncertainty is rooted in the fact that the Constitution does not state in so many words that an individual has a right of privacy at all. Rather, since the U.S. Supreme Court decided the Griswold case in 1965 and concluded that the Constitution established an “implied right of privacy” for individuals with respect to certain kinds of personal information, the federal courts have struggled to define exactly what types of information might be constitutionally protected.
At the present time, the U.S. Circuit Courts of Appeal are split on the issue of whether employee personal information is protected from disclosure by the U.S. Constitution, and the Supreme Court has not yet resolved the issue. Several Circuit Courts have held that there is an implied constitutional right to privacy in such information as employee medical records, psychiatric records, personal financial records, and criminal records. These Circuit Courts have found that the Fourth Amendment and the Fifth Amendment (which prohibits a person from being compelled to be a witness against herself) are the basis for a constitutional right to confidentiality.
Other Circuit Courts, however, have refused to hold that there is any constitutional right to nondisclosure of private information. These courts argue that it is not appropriate for the judiciary to infer that broad constitutional rights exist when the Constitution itself is silent concerning the issue.
It is important to note that the Fifth Amendment does clearly protect the privacy of public sector employees with respect to disclosure of one particular type of information: specifically, information that could be used against the employees to obtain criminal convictions. For example, an employee could not be compelled to answer a question from her employer as to whether or not she had ever used illegal drugs. However, a government employer can avoid the self-incrimination issue posed by such a question to an employee by guaranteeing to the employee that any information obtained in response to the question would be used only for employment purposes, and could not be used against the employee in any subsequent criminal proceeding.
It is critical to remember that even if it is clear that a public sector employee has a constitutional right of privacy in certain kinds of personal information, this does not guarantee that the employee will be protected from having to disclose the information. In some situations, the need of the government for disclosure of the information will be viewed by a court as outweighing the employee’s interest in keeping the information private.