Creating Clear Policies on Invasion of Privacy

Employers can avoid or limit invasion of privacy claims by developing clear employment policies or practices. Prior to establishing any policy the employer should consider the goals and objectives it seeks to achieve through the policy, whether these goals and objectives are necessary to meet its legitimate business needs, and the privacy implication of the policy. The policy should be drafted to withstand challenge based on privacy grounds. Because the critical issue in an invasion of privacy claim is the reasonable expectation of privacy of the employee, the key elements of any employment policy with respect to searches or surveillance is notice and consent. For example, the policy should state that employee's lockers, offices, mail, packages, etc. are subject to search at any time without notice. Similarly, the policy should state that their telephone calls, e-mail transmissions and voice mail are subject to monitoring. The policy should also inform employees that failure to cooperate in any work place investigation constitutes grounds for discipline, including termination. The employer should also consider obtaining signed written consent forms from the employee. Once a clear written policy is established, the employer should advise its employees of its policy by conspicuously posting it in the work place, distributing it at orientation programs or training sessions, or by publishing it in an employment manual. Lastly, and most importantly, searches and surveillances should be limited to the level necessary to achieve employer's legitimate business purpose.