Privacy in the Workplace

Although there is no explicit right to privacy in the US Constitution, Supreme Court decisions have established that the right to privacy is a basic human right and is protected under the Ninth Amendment.  Many believe that the right to privacy is inherent in the Third and Fourth Amendments' search and seizure restrictions and also in the Fifth Amendment's protection against self-incrimination.

The Ninth Amendment to the US Constitution provides: the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Supreme Court has discussed the Constitution's implied right of privacy in cases like Griswold and Eisenstadt, which both explored the ability of states to regulate contraception, the Loving decision which discussed interracial marriage and Roe v. Wade affecting abortion.

Article 1, Section 1 of the California Constitution specifically guarantees the right to privacy.

While Californians enjoy an enhanced right to privacy, the law allows employers to monitor employees and many employers use constant surveillance.  A 2007 study by the American Management Association noted that responding employers engage in widespread and persistent surveillance:

• 66% monitor Internet connections
• 65% use software to block access to certain websites
• 45% track content, keystrokes and time spent at the keyboard
• 43% store and review employee computer files
• 12% monitor blogs and bulletin boards to see what is written about the company
• 10% monitor social networking sites
• 45% monitor phone calls - time spent and numbers called
• 16% record phone conversations
• 9% listen to employees' voicemail messages
• 48% use video surveillance to deter theft
• 7% use video surveillance to track on-the-job performance
• 8% use GPS to track company vehicles

Only Delaware and Connecticut require employers to notify employees of monitoring, but about 83% of employers alert employees that the company is monitoring content, keystrokes and time spent at the keyboard.  71% alert employees that the company is reading their e-mail.

The menu at the top right of this page divides privacy in the workplace into three sections (1) monitoring e-mail, (2) monitoring phone calls, and (3) polygraph tests.

Employers must use caution in monitoring employee activity to ensure that they do not violate the law.  Employees should be aware that they are often being monitored at work and should refrain from revealing information or engaging in communications that they would prefer remain private.