The 4th Amendment states that American citizens have the right to be free from warrantless searches in areas in which they have a “reasonable expectation of privacy.” The term refers to specific areas or aspects of someone’s personal life in which a reasonable person would expect some degree of privacy.
Some of the most common examples of places in which a person has a reasonable expectation of privacy include:
- Places of residence, such as their home;
- Hotel rooms;
- Certain public places, such as restrooms;
- Some areas of jail houses;
- Phone booths; and
- Specific areas of a vehicle, which may vary by jurisdiction.
This expectation is in place so that the police and other such authorities need a search warrant before they can search these areas in which privacy is expected.
What Is Privacy In The Workplace?
Compared to the reasonable expectation of privacy in a person’s private life, their legal right to privacy in the workplace is considerably reduced.
In the workplace, because the space technically belongs to the employer, desks, and offices may be subject to legal search. However, a locked desk drawer or a private conversation could receive more privacy protections than spaces considered to be more open. Work computers, email accounts, and phone systems may also be subject to legal monitoring.
Employees’ personal belongings generally carry a higher expectation of privacy than their work property. This includes a cell phone, backpack, or purse. In the instance that something was stolen, or if the employee works in a considerably sensitive or high-risk security position, their employer may be able to search their personal belongings without violating the employee’s right to privacy in the workplace. The employer’s actions might be illegal if a search was conducted without a valid reason.
Government employees have different due process rights than those who work in the private sector. An example of this would be how their employer’s privacy policy may state that they have a right to representation. If you are provided this right, you should take advantage and use it. It is imperative to remember that human resources and company lawyers are in place to protect the company and not you.
Employers are generally not allowed to ask questions regarding your personal relationships. This includes:
- Questions about your personal life that are based on a protected status, such as your race, age, sex, disability, etc.;
- Questions about their spouse, children, or other relatives; and
- Questions associated with pregnancy, such as asking if someone is currently pregnant or asking a female-presenting employee whether they plan on carrying a pregnancy in the future.
Questions associated with tobacco, drug, and alcohol use are only legal under specific circumstances. An example of this would be if the employer asks the employee if they have ever been reprimanded for tobacco or alcohol use while on the job. In terms of drug use, an employer can only ask about illegal drug use because it is not necessary to know about personal prescription drugs.
Do I Have Any Rights To Telephone And VoiceMail Privacy While At Work?
In general, phone use at work is not considered to be private. When an employee uses a company phone or voicemail system, they are using the company’s property, and the company may monitor the use of that property, as was previously mentioned.
Policies can vary widely between employers, so it is important to know your employer’s specific policy regarding rights to telephone and voicemail privacy while at work. These policies will most likely provide you with this information during your hiring process, so claiming ignorance of the policy will not be a suitable defense if you are charged with improper phone use at work.
Employee privacy policies can generally be found in the following instances:
To reiterate, your employer can generally listen to phone conversations that you conduct while at work. The most commonly cited reason they monitor phone conversations would be quality control, because their employees interact with clients and customers on the phone.
In terms of personal phone calls, employers are legally required to stop monitoring the call once they realize it is personal in nature. However, this may not apply if your employer has specifically instructed that personal calls are not made at work, especially if they are not to be made on a work phone.
California does require notification to the parties to the call that it may be recorded. This can be done either with a beep or a recorded message signaling that the call is monitored. However, if one of the parties to the call is outside of the state, federal law allowing for unannounced monitoring applies.
A pen register can record your extension’s outgoing phone numbers. Employers can use pen registers to monitor actual phone numbers that you dialed, as well as the length of your conversation.
As long as your employer has a work-related reason to question the content of your voicemail, they may monitor the recordings. However, your employer may have difficulty when proving that you are not entitled to voicemail privacy, especially if they:
- Previously stated that they would not monitor voicemail;
- Gave you a private voicemail account access code; or
- Previously allowed you to make and receive personal calls in the workplace.
Can An Employer Search My Personal Devices, Such As Smartphones And Tablets?
If you are using an employer-provided mobile device, your employee may generally monitor your activity. This will most commonly include text messages and internet usage.
Like privacy policies, your employer will likely have a policy regarding using a personal mobile device. This may be written in your employee handbook or another format.
However, what is considered legal regarding your employer monitoring your personal mobile device is less clear. Because more people are now using their mobile devices for both work and personal purposes, this further complicates the issue. As such, you should be sure that you are aware of your employer’s policy regarding personal devices, such as smartphones and tablets. These policies are often called Bring Your Own Device (BYOD) policies.
The type of business that your employer has and the circumstances of the device’s usage can also determine what rights your employer has to access your personal device. Additionally, it is important to note that employers may be legally required to access work data found on your personal device. These circumstances can include, but are not limited to:
- State and federal security breach notification laws;
- State, federal, and industry-specific regulations;
- Data security regulations;
- International data protection laws;
- eDiscovery and other forms of legal procedure;
- Contractual obligations concerning data retention;
- Confidentiality obligations;
- Client contractual obligations; or
- Trade secret protections.
Do I Need A Lawyer For Help With Telephone And Voicemail Privacy At Work Issues?
If your privacy rights have been violated in the workplace, you should file a complaint with human resources and contact a local workplace attorney. Employees are afforded many protections at work, and the issue must be addressed when any of those protections are violated. Your lawyer can help you understand your legal rights and options according to your state’s specific workplace privacy laws, and will also be able to represent you in court as needed.
