Invasion of Privacy Theories

Generally, there are four theories upon which a plaintiff can assert an invasion of privacy claim: 1. the intentional intrusion upon solitude or seclusion; 2. appropriation of plaintiff's name or likeness for unpermitted use; 3. public disclosure of private facts; and 4. false light. Of primary concern to employees is the tort of intentional intrusion upon solitude or seclusion. The tort of intrusion upon seclusion may occur by: · physical intrusion into a place where plaintiff has secluded himself or herself, · use of defendant's services to over see or overhear the plaintiff's private affairs, or · some other form of investigation by examination into plaintiff's privacy concerns. Liability attaches only when the intrusion is substantial and would be highly offensive to the ordinary reasonable person. The search of an employee's personal property or locker can constitute the tort of invasion of privacy. The key is whether the employee had a reasonable expectation of privacy. Liability can also attach if an employer opens and reads mails addressed to the employee and marked “personal” or “confidential.” Videotaping of employees without their consent in areas where employees have a legitimate expectation of privacy can also constitute the tort of invasion of privacy. Of particular concern to employers today is the monitoring of electronic mail (“e-mail”) and employee voice-mail.