By FindLaw Staff | Legally reviewed by Gregg Cavanagh | Last reviewed December 28, 2022
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
Employee privacy is an ever-changing, complex issue. On one hand, employers would like to know as much about their employees as needed to make the right personnel decisions. For instance, school districts need to know that their bus drivers are not drinking alcohol before or during their shifts. Therefore, a pre-employment drug and alcohol test -- and perhaps random tests during their employment -- make good sense in that case. In contrast, it's probably not necessary (and illegal in some states) for a restaurant to check the credit scores of prospective wait staff.
When it comes to workplace privacy, there are both legal and practical considerations to take into account. Certain activities, such as subjecting employees to lie detector tests, are forbidden by law. But even some acts that are legal in the state, but potential employees still see as pervasive, can have the effect of driving away otherwise qualified candidates.
This article explores some key legal issues surrounding privacy in the workplace.
Monitoring Communications and Internet Usage
Current technology makes it possible for employers to monitor all of their employees' computer and telephone usage. In fact, office workers should assume that all of their phone calls, emails, and Internet destinations are being monitored. While it may seem overly invasive, it is generally legal as long as it involves company-owned property. The employer, it is argued, has a compelling interest in making sure its equipment is being used properly and for (primarily) business purposes.
This accumulated data on internet and email usage also provide evidence to help employers prove employee wrongdoing in employment disputes. But keep in mind that this data also could be useful for employees who file harassment, discrimination, or other employment-related lawsuits.
The monitoring of workplace telephone usage also is generally allowed. However, employers may not monitor an employee's personal phone, or even a company phone if it is a personal call (unless the employee has consented).
Drug testing is also a rapidly changing area of workplace privacy law, particularly in light of evolving marijuana laws. Employers generally have the right to conduct pre-employment drug tests, regardless of how an employee's substance use would affect their work. For certain high-risk occupations, such as commercial trucking, federal regulations require drug and alcohol testing. And while the Drug-Free Workplace Act of 1988 requires that employers that receive federal funding be drug-free, the act does not specifically allow drug testing.
There are certain limits, though. Some state laws have limitations and regulations in place for employers that choose to conduct drug tests. Generally, employers may not drug test their employees (or job applicants) either selectively or covertly. For instance, an employer may be sued if it conducts drug tests only on men with long hair and beards. In addition, state laws often limit the circumstances in which post-hiring drug testing may be administered (primarily limited to high-risk jobs or legitimate concerns about on-the-job drug use).
With the legalization of medical marijuana (and recreational marijuana use in some states), there has been some resistance to drug testing. Employers generally have the right to fire employees who test positive for marijuana, even if it is legal in that state. Some states, however, limit the ability of an employer to fire an employee for a positive marijuana test. In Minnesota, for example, employers that test for drugs must allow employees who test positive for the first time to enter a rehabilitative program as an alternative to being fired. Other states with medical marijuana laws allow protections for employees with a valid prescription, so long as they don't show up to work under the influence.
Medical and Genetic Information
An individual's genetic information and medical records are considered strictly confidential since they can be used to discriminate against current or prospective employees. For instance, an employer may decide not to hire an otherwise qualified candidate with a serious medical condition out of fear that his medical needs would be a drag on the company's health care plan. However, employees often share limited medical information with their supervisors in relation to medical leave.
Get Legal Help from an Employment Law Attorney
If you feel that your workplace privacy is violated, you should speak to an employment law attorney in your area. An employment law lawyer will review your claim and recommend helpful legal advice to navigate the issue at hand.
Speak to an employment law attorney today.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.