Fundamentally, employees forfeit certain privacy rights in exchange for the opportunity to be employed and to earn pay. Though some think that this arrangement is unconstitutional, there is very little support for this belief in the Constitution itself.
The reality is that while the constitution offers extensive privacy protection to those who are employed by the government, it offers very little protection to those employed by private employers.
The result is, there are very few laws in place to protect an employee’s right to privacy in the workplace, and most workplace privacy laws provide more protection to the employer than the employee.
However, the workplace privacy laws that are in place are constantly evolving to stay up-to-date with the modern workplace and to balance an employee’s right to privacy with an employer’s need to monitor that workplace.
What follows is a brief survey of the biggest concerns regarding privacy in the workplace for employees in Massachusetts and across the nation:
Electronic Communications
The federal Electronic Communications Privacy Act (ECPA) places limitations on your employer’s right to monitor your electronic communications at work. Nevertheless, your employer is generally permitted to monitor your electronic communications if you have been made aware that you will be monitored and have given your consent.
Telephone Monitoring
Most states, including Massachusetts, follow the federal law. In some states, however, both you and your employer must agree to your phone calls being monitored.
In other states, once your employer realizes that your call is of a personal nature, monitoring must cease immediately unless you have already been made aware that you are forbidden from making personal phone calls while at work.
Computer Usage
Because your employer typically owns both the network and the computers, privacy laws offer very little protection to you while using workplace computers.
Your employer is allowed to monitor how frequently you use workplace computers and for what purposes you use them. However, your union contract may place restrictions on how closely your employer can monitor you while using a workplace computer.
Email & Voicemail
Neither the email messages nor the voice mail messages you send using a workplace place computer or telephone are protected by workplace privacy laws.
Again, since your employer owns the computer and network by which these messages are sent, they generally don’t need your consent to access and monitor these messages.
However, certain courts have ruled that communications sent by an employee to a doctor or attorney from the workplace may be protected by workplace privacy laws.
Physical Privacy
The Fourth and Fifth Amendments to the United States Constitution safeguards against unreasonable search and seizures. However, in a private employer setting, your employer can limit your right to physical privacy, as long as they perform their due diligence by establishing proper privacy policies.
For example, if your employer creates privacy policies in an employee handbook (or wherever else your company publishes privacy policies) that informs you that you should not have an expectation of privacy in certain areas, then your employer may be allowed to engage in activities such as:
Physical Searches
Your employer is generally allowed to search your desk, workstation, and locker. In addition, personal belongings, such as your purse, bag, jacket, and even your company supplied vehicle may be subject to search without your consent.
Video Monitoring
In order to provide security, track productivity, and prevent theft, your employer may monitor public workspaces by video. What’s more, your employer generally doesn’t have to let you know that you are under video surveillance when in these spaces.
The overarching theme when it comes to your right to physical privacy at work is your expectation of privacy. So, one of the few exceptions to the rules discussed above is when your employee has given you a key to a particular desk or locker.
When this is the case, that space cannot be searched without your consent, since the key confers a reasonable expectation of privacy. Likewise, video monitoring is not allowed in places where you should ordinarily have a reasonable expectation of privacy, such as in changing rooms, toilets, and bathrooms.
Background Checks
Employers often run background checks on potential employees before making a decision to hire them, or in connection with a decision to promote or reassign an existing employee.
Background checks are covered under the Fair Credit Reporting Act (FCRA) and may contain information about your:
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- Creditworthiness;
- Character;
- General reputation;
- Personal characteristics;
- Education;
- Work history;
- Financial history;
- Driving record; and
- Other information deemed relevant to the position
As a general rule, information requested and obtained through a background check should be limited to that which is essential to determine if you are qualified for the position.
Furthermore, before running a background check on you, the employer must get your express written consent. In other words, they must have you sign something.
But, what you sign must not contain any extra language, such as something that waives your rights under the law, or tells you that you cannot sue someone if the information found is inaccurate and causes you loss of employment.
Moreover, if the employer ultimately denies you the position as a result of the information obtained through the background check, you must be:
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- Notified of this decision in writing;
- Provided with a copy of the background report;
- Told which company performed the search; and
- Made aware of your rights under the FCRA.
Contact an Experienced Massachusetts Employment Lawyer
Employee privacy rights is an emerging area of law and each privacy case is unique. If you believe your privacy rights have been violated by your employer, contact The Law Offices of Richard Mucci at 781-729-3999 to discuss your particular situation with a knowledgeable and experienced Massachusetts employment law attorney.