<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by caramia:
What right does an employer have as far as invasion of privacy. My new boss took it upon himself to go through my computer at the office and remove any non-employment software.. then went through every desk drawer and read all that was in my desk.. personal-nonpersonal.... What recourse do I have? I understand it's company property..but I've spent 27 years there and you naturally have some personal information.(bills that I pay, cooking software. things that I do during my lunch break) Information would be greatly appreciated.. Thank you...
Well, you asked for it . . .
I. INVASION OF EMPLOYEE PRIVACY
Most states recognize some form of the common law invasion of privacy tort. For example, New Jersey and Pennsylvania recognize four different tort claims based on invasion of privacy: 1) intrusion upon seclusion or intrusion or into private affairs; 2) public disclosure of embarrassing private facts; 3) publicity which places the plaintiff in a false light in the public eye; and 4) appropriation of the plaintiff's name or likeness.
A. Unreasonable Intrusion -- This type of invasion of privacy tort concerns surveillance, unauthorized physical intrusion into a place where the plaintiff reasonably expects privacy, breaking and entering, unauthorized photography, and use of one's senses to oversee or overhear the plaintiff's private affairs. To state a claim for unreasonable intrusion, the plaintiff must show that the defendant's investigation or examination of his/her private life would be highly offensive to the reasonable person. Unlike other torts for invasion of privacy, a claim for unreasonable intrusion does not require publication of the information obtained. This claim is based on the psychological distress caused by the intrusion regardless of publication or whether any information, embarrassing or not, was obtained.
Defense: Consent -- Consent is a defense. Employers can reduce the likelihood of claims by providing the employee or applicant with notice of the inquiry to be conducted and a signed consent and release form. Employers should also tailor their inquiry and information gathering techniques to include reasonable requests pertaining to job requirements.
B. Public Disclosure of Private Facts -- To make out a claim of public disclosure of private facts a plaintiff must show that: 1) a private fact was publicized; 2) the fact was of a type the disclosure of which would be highly offensive to a reasonable person; and 3) it is not a matter of legitimate public concern. This type of tort is similar to defamation, but easier to prove because there is liability under this theory even when the statement is true. Unnecessary publication of the truth is the essence of this tort. However, publication to any third party is not sufficient to confer liability even though it generally is sufficient for defamation claims. Generally speaking, there is no publicity where the disclosure of private facts was made to only to a small number of people.
Defense: Consent -- Consent is a defense. Because a person may waive his/her right to privacy, the use of releases and consent forms should be considered before the information is gathered as well as when it is subsequently requested by a prospective employer or other party. An employer can reduce its exposure by limiting disclosure of investigative information, including the applicant's history, medical test or screen results, background check results or other private information to as few people as necessary. If the information is obtained as part of the hiring and screening process, then access should, if possible, be limited to those involved in that process. The same can be said of the investigative process. If a prospective employer requests the information, the former employer should request a signed release from the former employee.
C. False Light -- To make out a claim based on false light, the plaintiff must show that a highly offensive false statement was publicized by the defendant with knowledge or reckless disregard of its falsity. A false light claim can also be established where the defendant creates a false impression by knowingly and recklessly publicizing selective pieces of true information.
II. EMPLOYER SEARCHES
Whether a particular search of company or employee property is legal will initially depend on whether the employer is public or private. A public employer's ability to conduct searches is limited by the Fourth Amendment to the United States Constitution which protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." Because the Fourth Amendment protects private citizens against governmental intrusions, most searches by private employers do not implicate constitutional concerns. However, when an employer is acting in concert with the government, an unreasonable search may give rise to a claim under the Fourth Amendment.
Private employers are not constrained by the Fourth Amendment. Therefore, private employers are generally less restricted in their ability to conduct searches. However, private employers should be aware that the constitutions and statutes of a few states protect employees from unreasonable searches by their employers. For example, the California State Constitution provides a right of privacy for private employees. The New Jersey and Pennsylvania Constitutions have not been interpreted to protect against invasions of privacy by private actors.
A. Locker Searches -- When an employee purchases and uses his/her own lock on a locker provided by the employer for storage of personal effects during working hours, the employee has a legitimate expectation of privacy that the locker and its contents will be free from intrusion and interference. Therefore, mere suspicions regarding the employee will not justify the search of the employee's locker. However, if the employer's policies make clear that the company has the right to search lockers on reasonable suspicion, the employee has a reduced expectation of privacy in his/her locker and a search of the locker may be justifiable.
B. Residence Searches -- Love v. Southern Bell Tel. Co., 263 So. 2d 460 (La. App. 1972), cert. denied, 266 So. 2d 429 (La. 1972) (former employee may sue his employer when, after an absence of one week from work, the employer's agents broke into his mobile home and found him drunk).
C. Desk and File Cabinet Searches -- The United States Supreme Court has recognized that a public employee may have a reasonable expectation of privacy in his/her desk or file cabinets. A private employer who broke into employee's private safes and desk, and removed private papers of employee did not violate the employee's Fourth Amendment right even though seizure was unlawful, but may have violated his right to privacy. In evaluating whether a search is legal, courts will balance whether the employee's expectation of privacy remains reasonable in light of the employer's legitimate business needs and policies.
D. Vehicle Searches -- Gretencord v. Ford Motor Co., 538 F. Supp. 331 (D. Kan. 1982) (employee may not sue employer for invasion of privacy, false arrest, false imprisonment, or outrage when employer instituted practice of random searches of vehicles leaving the workplace); Terrell v. Rowsey, 647 N.E.2d 662 (Ind. Ct. App. 1995) (supervisor's search of employee's car upheld where there was evidence that the employee may have been drinking alcohol on company premises in violation of established policies).
E. Personal Property -- (i e., wallets, handbags, etc.) B An employer's search of an employee's personal property, including wallets, handbags or lunch boxes, must be reasonable under the circumstances.
III. TESTING OF EMPLOYEES
A. Drug and Alcohol Testing -- Several states have enacted statutes governing employer drug and alcohol testing of employees and applicants. The statutes