Privacy Issues in the Workplace

The First Amendment to the United States Constitution limits government employers from abridging employees’ freedom of speech, religion and association. One example is when an employer attempts to control an employee’s political affiliations. 4 The Fourth Amendment to the United States Constitution protects personal privacy by prohibiting unreasonable searches and seizures. It also protects matters that an individual seeks to preserve as private and that he or she does not knowingly expose to the public. This includes searches of employees and of employee lockers, desks, and personal belongings. b. California Constitution: Invasion of Privacy Action Article I, Section 1, of the California Constitution expressly confers a right to privacy. It provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” 5 In the leading case interpreting the right to privacy under Article I, Section 1, of the California Constitution, Hill v. NCAA , 6 the California Supreme Court identified the core values furthered by the constitutional right as informational privacy and autonomy privacy. To prove an invasion of privacy under the California Constitution, a person must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) a serious invasion of the privacy interest. Employers may justify an invasion of privacy by asserting legitimate competing or countervailing interests. If the interests asserted by the employer justify the invasion of privacy, the intrusion does not violate the California Constitution. The California Supreme Court reaffirmed the above test in case Williams v. Superior Court 7 . The Court found a flexible approach applies to balancing privacy interests. In Williams , the Court permitted the discovery of the names and address of other employees by plaintiffs who may have an interest in a class action to recover wages over the assertion of privacy objections raised by the employer. The Court noted that the Hill requirement of a reasonable expectation of privacy was not met on the employees’ behalf, as employees could reasonably expect “or even hope” that their contact information would be shared with a plaintiff seeking to vindicate their rights. The Court further explained that not every assertion of a privacy interest under the California Constitution must be overcome by a compelling interest. A compelling interest is only required for “an obvious invasion of an interest fundamental to personal autonomy.” However, “when lesser interests are at stake,” a “more nuanced framework” applies, “with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” 8  Informational privacy embodies the right against the unauthorized dissemination or misuse of sensitive and confidential information.  Autonomy privacy refers to the federal constitutional tradition of safeguarding certain intimate and personal decisions from government interference.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 9