On the one hand, you have a responsibility to protect employees and company property, including equipment, data, and money. But getting results demands communication, and employees are less likely to talk with someone they don’t trust.
The issue is further complicated by the fact that the workplace privacy issue is far from crystal clear. All of us struggle with where the right to privacy begins and where it ends because there is no single authority on the topic. There isn’t a single word in the U.S. Constitution about privacy, yet the Supreme Court has ruled that there is a “penumbra” of rights that address the issue. Yet because the U.S. Constitution restricts government action, decisions on privacy rights in the workplace involving the U.S. Constitution apply mostly to federal employees. That hasn’t stopped many states (including California) from including guarantees to privacy in their constitutions that apply to private employers. Privacy standards have been shaped by state and federal statutes and regulations and by court decisions.
By now that may sound like enough to send you running from the room, but stay with us; there are ways to balance employees’ right to privacy with your right to protect people and your company’s assets. Here’s how:
Establish expectations. Ironically, the less your employees expect privacy, the less likely you are to have a problem. Practically speaking, low expectations mean employees are not disappointed or surprised by their employer’s actions. Low expectations also provide the legal defense often needed if there is a lawsuit. Employee handbooks, job application forms, written policies, and contracts should all carefully set forth your right to inspect, search, test, and check for illegal substances and objects, illegal activity, and the improper use of company equipment (including computers, telephones, desks, lockers, locks, and e-mail) consistent with applicable laws.
Focus on business reasons. Just because you can search an employee’s desk doesn’t make it a good idea. If employees feel their privacy is invaded, they may feel distrusted and angry, and morale may suffer.
Therefore, don’t even think about conducting a search unless you have evidence or a strong, verifiable reason to believe that
• An employee is stealing.
• An employee is using company equipment improperly.
• An employee is engaged in illegal activity (such as selling or possessing illegal drugs).
• An employee’s safety may be at risk.
Don’t mistake suspicion for a reason based on objective fact.
Consider doing a search only as a last resort. First, try old-fashioned detective work and simple questioning of employees; that’s often enough to “crack the case.”
Stay out of employees’ private lives. Don’t ask employees about their marital status, the health of their personal relationships, or other issues unrelated to work performance.
In addition, it’s usually best not to try to regulate employees’ off-duty activities. Some employers, for example, have tried to dissuade employees from parachuting or bungee jumping (for fear of injury and therefore expensive medical claims). Others have sought to keep employees from moonlighting or from participating in events that the employer feels may cast the company in a negative light (marching in a political protest, for example). But many states now limit such restrictions, and some ban any employer restrictions on lawful activities after hours.