Employee Privacy- What Should Employers Know?

The Federal and Louisiana Constitutions recognize a right to privacy. Louisiana Constitutional Article 1 Section 5 provides that every person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy.

Many employee lawsuits involving invasion of privacy pertain to allegations of unreasonable intrusion into a zone of privacy or unreasonable publicity of an employee’s private affairs. The employee must generally show a reasonable expectation of privacy and highly offensive intrusion or disclosure by his employer. A court will determine whether the employee had an actual or subjective expectation of privacy and whether society is prepared to recognize that expectation as reasonable.[1] Courts must balance the employee's expectation of privacy against the employer's interest in its operations.

In State v. Lambright, a Louisiana court held a terminated employee who had cleaned out his desk had no reasonable expectation of privacy in the desk or in items found in desk.[2] The court explained:

We hold that defendant had no reasonable privacy interest in the bank statements [left in his desk after he was terminated] under the circumstances of this case. The envelopes were unsealed, bound together only by a rubber band, readily identifiable through the glassine window as bearing the official address of the district attorney's office, and bearing no indicia, other than defendant's name, that they were private and unrelated to the office.[3]

On the other hand, in Branan v. Mac Tools, an Ohio court held that an employee may have an expectation of privacy in his briefcase even though he abandoned it in his former employer's office.[4] The court reasoned that the briefcase was the employee's personal property and that the employee had no reason to expect that the employer would access it.  Similarly, in K-Mart Corp. v. Trotti, a Texas court held that an employee may have an expectation in an employer-provided locker where the employee supplied her own lock and had no reason to believe that the employer had any means of accessing the locker once it was locked.[5]

An employer may create or expand a zone of privacy by promising confidentiality or eliminate or reduce it by giving notice that the employee is subject to intrusions and disclosures. If an employer plans to conduct searches of an employee's workspace, it should advise the employee in writing at the time of hiring. The policy should outline all areas controlled by the employer that are subject to search. An employer should also obtain written consent to workplace searches. Even if an employer has obtained consent, employers should be cautious when searching or monitoring areas such as employee lockers or places where personal items are stored.