Some state constitutions may provide stronger protections for employees than the federal constitution concerning circumstances under which government employees or their work areas can be searched or when they can be tested for drug or alcohol use.
Remember that these protections vary widely by state.
Therefore, it is important to research the state constitution, and court cases interpreting it, of the particular state in which the employer and the employees are located to determine what, if any, additional privacy protections are granted to employees by the state constitution.Employees protections are generally limited to those provided either by state statutes or certain common-law principles established over time by state court decisions.State statutory sources of privacy protections. Whether a private-sector employee is entitled to employment-related privacy rights under a state statute depends on whether or not the particular state that he or she works in has enacted statutes related to privacy that cover private-sector employees.
Examples of the kinds of protections that state statutes may provide to private-sector employees include restrictions on what types of employee information may be disclosed or disseminated by an employer; rights granted to employees to refuse to submit to drug tests without their consent; and prohibitions against employers obtaining or using certain kinds of records to make employment decisions, such as credit information.Because the level of state statutory protections for employee privacy vary widely from state to state, it is again critical that you research the statutes in the state in which the private-sector employees work to determine what, if any, state statutory privacy rights are applicable to them.Common-law protections applicable to private-sector employeesIn many states, the most significant privacy protections for private sector employees are based on common law, that is, court-created standards developed over the years as to what reasonably constitutes wrongful conduct. Common-law privacy protections are not set forth explicitly in written constitutions or statutes. To determine what protections they provide to private-sector employees, it is necessary to research court cases to determine what type of employer conduct has been held to be legal or illegal. Common-law privacy rights are based on the decisions of state courts, rather than federal courts. This means that, again, there may be variations on what privacy protections are available to a private-sector employee, depending on what state she works in.Examples of some of the most widely accepted common-law protections covering private-sector (as well as public-sector) employees are as follows:Intrusions into seclusion
Most state courts will protect employees from unwarranted intrusions into seclusion. An intrusion into seclusion is usually defined as a situation where
(1) an employer intentionally intrudes into a private area (which can include either a physical location or a type of information);
(2) the employee is entitled to privacy in that area; and
(3) the intrusion would be objectionable to a person of reasonable sensitivity.
One example of a possible intrusion into seclusion might be an employer demanding to know about the quality of sexual relations between an employee and his spouse. Another example could be a situation where an employer engages in a search of an employee’s personal locker without consent, where the employer has provided the locker for an employee to store personal items in at the workplace.
Common-law protections against intrusions into seclusion are not absolute. An employer may be able to legally justify such an intrusion, if it has a justifiable business reason for its actions. For example, in the second example above, the employer’s locker search might be fully legal and justified if it was undertaken in response to a reliable witness telling a manager that he saw the employee place illegal drugs into the locker.
Public disclosure of private facts
A second common-law privacy protection applicable to many private-sector employees is protection against public disclosure of private facts. To establish that an employer has violated his privacy rights under this principle, an employee must usually show that his employer (1) intentionally or negligently publicly disclosed (2) private matters, and (3) that such disclosure would be objectionable to a reasonable person of ordinary sensitivities. In some states this has been codified as breach of confidentiality.
The most important limitation on this privacy protection is that it does not apply to situations where an employer discloses private information about an employee to a very small number of other persons. Thus, for example, an employee could not successfully sue her employer under this legal theory based on her Human Resources Director disclosing to two friends at a luncheon that the employee had a sexually transmitted disease. While the HR Director disclosed private information in this case, the dissemination has not been to the public at large. Similarly, it is also a defense to a claim of public disclosure of private facts that the information is not, in fact, private, but is available to the general public. An example of this might be information that the employee had been convicted of a criminal offense since such information is a matter of public record.
Publication in a false light
A third common-law privacy protection that may be available to private-sector employees is the prohibition against an employer publicly disclosing facts that would place an employee in a false light before the general public. If an employer violates this protection, an employee may sue the employer for publication in a false light.
Publication in a false light is generally established where (1) an employer discloses facts to the public that portray an employee in a false light, (2) the false light would be highly offensive to a reasonable person, and (3) the party disclosing the information had knowledge of or recklessly disregarded the false light of the publication of the facts. As with public disclosure of private facts, an employee cannot successfully sue the employer if the publication was only to a small number of individuals as opposed to the public at large. An example of publication in a false light might be if an employer claimed when interviewed by a newspaper for a story that an employee was blameworthy for operating a piece of machinery in an unsafe manner, thereby causing injury to another person, where the employer knew that the employee operated the machine exactly as instructed by the employer.
The regulation of off-work conduct
Apart from the specific common-law protections described above, employers must generally be wary of attempting to regulate the off-work conduct of employees, except where there is a clear connection between non-job activities and the ability of the employee to effectively perform his job. Thus, it may well be a violation of an employee’s rights to prohibit a non-supervisory employee from dating another non-supervisory employee, because a court may consider the employer to have no legitimate job-related interest in such employees’ social lives. On the other hand, an employer of a medical doctor would likely have every right to scrutinize and act upon frequent episodes of drunkenness by the doctor, even if such episodes were limited to times when the doctor was off work.
Employee privacy and job references
Following media coverage of a number of cases where employees have successfully sued former employers based on false and damaging job references, many people now mistakenly believe that it is not legal for an employer to give a negative job reference about a former employee to a prospective new employer. The fact is employers today are not expressly prohibited from giving bad or indifferent information to prospective employers of former employees, as well as favorable references, so long as the information that they provide is factually accurate. Although many employers now have policies that they will only provide prospective employers with such information as the dates of employment, position held, and salary or wages of a former employee, these policies are not dictated by privacy statutes or court decisions. Rather, they stem from desires by employers to avoid the possibility of being sued by former employees for defamation, based on allegations that an employer knowingly or recklessly gave a prospective employer false information, thus causing the prospective employer not to hire the former employee. While, in theory, employers cannot be held to have acted illegally for providing a truthful job reference, it remains costly for employers to defend themselves against claims by an employee that the “truthful” reference was actually false.