Employee Privacy Rights in the Constitution

There is not one set standard for employee privacy rights in America that all workers can refer to when they have questions or concerns about their private rights in the workplace. There are various sources---including the Constitution, statutory law, federal regulation, and case law---that courts use to determine whether an employee's rights have been violated. When analyzing employee privacy rights to determine which type of law applies to a particular situation, employees are also divided into at least two categories: public vs. private employee.

Constitutional Protection

The issue of employee privacy rights is not addressed directly in the Constitution, as this was not a primary concern of the time period, and was likely not something that the forefathers could discern as becoming a pertinent issue in future generations. Since this is the case, the issue of employee privacy is not directly mentioned in the Constitution. However, employment law attorneys and legal analysts have argued that the Fourth Amendment, which protects citizens against unreasonable searches and seizures of property, should be interpreted as a protection of employee privacy rights in certain employment contexts. The term "certain" is key here, because Fourth Amendment protection cannot be extended to all types of employees.

Public Employees

Public employees, or people who work for the federal government or a state/municipal agency, are covered by the Fourth Amendment's protection from unreasonable searches and seizures. A "search" may include looking through an employee's desk or computer files; a "seizure" includes acts such as confiscating items located within the desk or files. The reason that government employees' privacy rights are protected by this constitutional amendment is because one of the original purposes for the drafting of the Constitution was to protect citizens from excessive government interference and deprivation of liberties. For a public employee, this concern overlaps into his workspace because his boss is the same government that the authors of the Constitution and its amendments sought to contain.

The protection for a public employee against searches and seizures is not absolute. The search must be "unreasonable" in order for it to be a violation of the Fourth Amendment. Courts determine whether a search or seizure is unreasonable by evaluating whether it was motivated by legitimate work-related purposes. For example, in City of Ontario v. Quon, a court upheld a police department's act of obtaining a police officer's pager messages from a state-issued pager as a reasonable search because it was done for the work-related purpose of determining whether the officer's texting plan needed to be changed to allow for more messages.

Private Employees

The Fourth Amendment's protection against unreasonable searches and seizures does not apply to employees of private companies, nor is there any other constitutional reference that has been used to establish protection of privacy rights for private employees.

However, courts have looked to other standards, such as the "expectation of privacy" test and the Privacy for Consumers and Workers Act to determine whether private employees' privacy rights have been violated.

References

• The Publishing Law Center: Right to Privacy in the Workplace in the Information Age; Lloyd L. Rich, Esq.
• Privacy Rights Clearinghouse: Fact Sheet 7: Workplace Privacy and Employee Monitoring