Source: Jessica Fink, California Western School of Law, July 12, 2013
From the abstract:
In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the “social media privacy” of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers’ efforts to monitor their employees’ email, Internet and telephone usage. Employees rage about perceived invasions of their privacy. Politicians heatedly debate how to limit employers’ prying conduct, passing laws designed to reign in certain types of monitoring by employers. At the same time, employers also find themselves perplexed, as they grapple with how they can gather the information that they need to make important business decisions within an environment that views such efforts with disdain. In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy.
This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to “snoop” into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.
At bottom, this paper attempts to put the “problem” of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.