Employee confidentiality rights are an increasingly controversial legal topic. On the one hand, federal and state law protect an individual’s right to privacy (even though the US Constitution is a little vague on personal privacy). On the other hand, businesses are legal entities that have their own right to privacy and property. That’s pretty cut-and-dry when it comes to your private phone, messages, and mail, but the boundaries become blurry when you’re communicating private information on a company’s computer system, or when you bring private, personal possessions onto company property.
Employee confidentiality is also a tricky subject when it comes to what private information you are obligated to provide to your employer. Federal employment law delineates a few things that an employer can’t ask an employee, but outside of that an employer is generally free to request private information that is relevant to the employee’s job.
So, where do you draw the line? When does an employer have the right to search your personal property or view your communications? When do you have the right to decline to answer a personal question, and when does your employer have the right to require that you provide private information? Following is a brief discussion of employee confidentiality rights that aims to answer those important questions.
Can your employer search your workspace?
The courts have determined that an employee’s workspace (desk, office, cubicle) is company property, and an employer always has the right to search company property. Employers also have the right to search public lockers. However, there are two notable exceptions to these rules. First, an employee’s personal possessions (purse, handbag, briefcase) are generally safe from searches. Second, an employee’s private, individually-assigned locker is generally safe from searches. The caveat to both of these exceptions is that the employer may have the right to search an employee’s personal possessions and/or private locker if the employer has sufficient probable cause (e.g. something was stolen, or the employee works in a high-risk security area).
Can your employer search your computer and email?
Generally speaking, a company can monitor and archive activity on company-issued electronic devices (computers, tablets, phones) and on company-provided networks. Companies are allowed to monitor and view employee emails that are sent/received using the company’s computer system as long as there is a valid business purpose. Companies can also block employees from accessing specific websites, track the websites that an employee visits, and control the amount of time that an employee spends on a particular website.
Can your employer search your vehicle?
If you’re using a company car, your employer has the right to search the car at any time. If you have a personal vehicle, your employer doesn’t have the right to search your car. If your employer has probable cause that your car contains illegal, dangerous, or stolen materials, the employer should call the police and request that a police officer search the car.
Can your employer monitor your phone calls, text message, and voicemails?
An employer has the right to monitor your phone calls, text messages, and voicemails anytime you are using company property (a company-issued computer, laptop, phone, or tablet) or company computer systems (corporate email, intranet). Companies have the right to monitor phone calls for quality assurance purposes, but the company should stop monitoring an employee’s phone call when it’s evident that it’s a personal call. Any communications on your private electronic devices are confidential.
Can your employer require you to take a drug test?
Arizona is an “at-will” employment state, so the employment agreement is voluntary for both parties. Employees have the right to decline a drug test, but employers also have the right to terminate an employee for refusing to take a drug test.
Can your employer search you when you leave work?
Companies have the right to search employees if they have probable cause, as long as the search isn’t overly invasive. Employers who regularly search employees without probably cause, or who discriminately search certain employees, may be liable for invasion of privacy.
Can your employer require you to take a polygraph test?
The Employee Polygraph Protection Act (EPPA) generally prohibits employers from using a polygraph test with current and prospective employees, with three notable exceptions. First, the EPPA applies to private employees, not government employees. Second, companies that do business in certain industries (namely security and pharmaceutical) may ask certain job applicants to complete a polygraph test. Third, a private employer can administer a polygraph test to an employee who the employer reasonably suspects is involved in a financial crime against the company (theft, embezzlement, etc.).
Can your employer monitor your actions with security cameras?
Companies are allowed to place and monitor security cameras in public areas of the business. Cameras aren’t allowed in bathrooms or changing areas.
Are an employee’s comments during an investigation kept confidential?
While managers and supervisors are required to respect employees’ privacy, it may be necessary to share an employee’s confidential information (i.e. verbal or written testimony) with other managers and supervisors who are involved with the investigation. For example, if an employee tells their manager in confidence that she is being harassed by another employee, the manager may be obligated to report the incident and launch a harassment investigation, even if the employee requested no action be taken. In these cases, the company’s policies in its employee handbook will govern what can be kept confidential and what should be reported to the human resources team.
Confidential questions
There are a handful of topics that are considered “protected classes.” Employers are prohibited from considering protected classes when making employment decisions (hiring, firing, promoting, demoting, reassigning, discipline, etc.). An employee or job applicant can voluntarily disclose information regarding protected classes, and an employer can ask if the employee is willing to disclose this information, but companies are prohibited from directly asking about them. Some of the most important protected classes include:
- Pregnancy – the Pregnancy Discrimination Act bars employers from asking about an employee’s past, current, or future pregnancy
- Disability – the Americans with Disabilities Act restricts employers from asking if an employee is disabled, but they can ask if the disabled employee is qualified for the job with or without reasonable accommodations. Employers can also ask for a disabled employee’s preferences regarding reasonable accommodations
- Discrimination – Title VII of the Civil Rights Act prohibits employers from asking about an employee’s race, color, religion, sex, national origin; state law prohibits employers from asking about an employee’s marital status, sexual orientation, or gender identification
Are salaries confidential?
From the employer’s perspective, an employee’s compensation is private and should not be shared with other employees. Human resources departments should have policies in place to protect this information from being public knowledge. However, employees have the right to ask their coworkers about their salaries if the querying employee believes there is an issue with unequal or discriminative pay, as long as the employee is seeking evidence in good faith (Equal Pay Act).
Call our Employment Law team at (480) 464-1111 to discuss your case today.
