Whenever a question arises about an employee’s right to privacy in the workplace, it’s best to start the analysis with the following question: What’s the context? The answer is critical to identifying the rights that may be at stake as well as isolating the kind of technology being used. Public employees may have different rights than private employees. An employer’s policies may eliminate an objective expectation of privacy. An employee may have a subjective expectation of privacy, based on the use of passwords, the segregation of information, or the equivalent of an electronic lockbox. Different forms of technology may simply not be treated as private.
It’s also important to understand that the law regarding an employee’s expectation of privacy has not yet caught up with all the forms of technology that are out there and can be used in a workplace. The existing law may not lend itself to analyzing claims dependent on electronic privacy. Many judges have declined to predict where the law is going because technology is changing so rapidly. For these reasons, privacy claims must be carefully evaluated on a case-by-case basis within the boundaries of the workplace.