We are often asked to act for clients who have issues that stem from a conflict of privacy expectations in the workplace. The expectation never seems to come to a head until there is point issue such as a termination or a workplace incident. At that point we’re asked to go back and determine whose expectation was more reasonable.
The analysis is never easy. Workers have a right to privacy, but that right is not unlimited. Employers have a right to monitor the workplace, but that right, too, is not limited.
We need to look at a host of factors that will help determine where the appropriate expectation should fall. The nature of the work done is important – in a law firm, the information dealt with is incredibly sensitive and employees might reasonably expect that there management of that information might be monitored; in a distribution facility, the goods handled by employees are the only source of revenues and employees might reasonably expect that their interaction with those goods will be monitored.
We also look at the various ways that privacy is challenged. Are employees monitored by surreptitious means, or in accordance with a clear company policy? Is information collected that serves no purpose? Is the challenge to privacy as non-invasive as possible?
Ultimately, both parties are best served by a clearly thought out policy that considers that collection use and storage of all potentially private information, and the communication of that policy to all employees who might be subject to it.
We have experience in both helping employers to draw that line before it becomes an issue, and in dealing with the consequences of breaches of the expectation. If you are an employer and you are concerned about a workplace privacy issue, please contact us before you make your next step.