The Value of Privacy in the Workplace

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"Privacy. There seems to be no legal issue today that cuts so wide a swath through conflicts confronting American society: from AIDS tests to wiretaps, polygraph test to computerized data bases, the common denominator has been whether the right to privacy outweighs other concerns of society…" This quote from Robert Ellis Smith explains, in one sentence, the absolute need to ensure privacy in the workplace. One of the most interesting, yet controversial, areas concerning public personnel is employee privacy. What limits are there to employers' intrusions into, and control over, employees' behaviors and personal properties?

There are five major areas which trigger privacy matters in the area of public sector employment: background checks, cognizance of off duty conduct and lifestyles, drug testing, workplace searches, and monitoring of workplace activity. Of these five, the fifth area of privacy, monitoring of workplace activity, is the most controversial. The reason for this is the advance of technology. These conflicts open anew the basic questions as to what is private, what is propriety, what legal rights an employee possesses, and what an employee's obligations and responsibilities are within the sphere of public employment.

Privacy has been defined as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". The privacy claims of employees can vary in terms of the privacy interest involved and the conception of a need for privacy. In terms of background checks, the issue of autonomy is presented. Autonomy involves ones own personal and individual liberties. Autonomy embraces areas of central life choice and lifestyle that are important in terms of individual expression, but irrelevant to an employer and of no public concern. It has been associated with marital and other intimate relationships, home and family life, and association and reproductive choices. Employees have raised issues of employer intrusion into this area where the employer makes employment decisions on the basis of something in an employee's personal history, or conditions employment on appropriate responses to inquires about personal activities which are not job-related. An employer may have interests which permit some limited intrusion into this area, if the behavior involves misconduct or illegal activity. Off-duty personal conduct may be regarded as relevant to employment if the misconduct has a connection to the employee's performance within the organization, or if the misconduct negatively impacts the organization's mission.

Privacy also hinges on a respect for a person's inherent dignity. An employee can claim a protection of his reputation and sense of self-worth against defamation, discrimination, or personal abuse. A person also has the right to maintain his personal beliefs and convictions against coercion and manipulation. Applied to the environment of public employment, this conception would prohibit any employer from harassing individuals on the basis of their class or status, or their personal characteristics. It would prohibit employers from shaming employees and causing emotional distress in the process. It would prohibit an employer from breaching the confidentiality of an employee's record or publicizing closed hearings concerning the employee. This is one area where an employee's privacy interests may be violated in a technological environment by fellow employees who may use bulletin boards to post embarrassing information or defamatory messages to be read by others. This conception of privacy can also be extended to a claim against pervasive intrusion by employers into employees' work activities. An employee may feel constant camera surveillance, monitoring of phone calls and computer use, and an accounting for every minute of duty time reflects an omnipresent, oppressive employer, who exhibits...
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