Employee privacy rights are not based primarily on federal statutes, but stem from a variety of sources. In particular cases, these sources may include the Constitution of the United States of America, state constitutions, federal statutes, state statutes, and common-law court decisions. However, not all of these sources of law apply to all types of employees. When faced with a workplace privacy issue, the first critical inquiry that you must make is whether the employees involved work in the public sector–that is, are they employed by a federal, state, or local government employer–or the private sector–which includes all non-government employees. The reason that this inquiry is important is that all protections of privacy based on federal or state constitutions apply only to public-sector employees. The purpose of the federal and state constitutions is to provide basic rights and protections to persons in relation to their governments, not to regulate relationships among and between private individuals or companies. Therefore, private-sector employees must depend primarily on the protections offered by common law for protection of personal privacy rights.
There are several differences between privacy protections available to public-sector versus private-sector employees which also include electronic communications, including privacy issues associated with employee e-mail and some cases social media.