{"id":1735,"date":"2018-04-02T18:47:43","date_gmt":"2018-04-02T18:47:43","guid":{"rendered":"https:\/\/www.jacksonwhitelaw.com\/az-labor-employment-law\/?page_id=1735"},"modified":"2024-12-06T23:43:49","modified_gmt":"2024-12-06T23:43:49","slug":"employee-confidentiality-rights","status":"publish","type":"post","link":"https:\/\/www.jacksonwhitelaw.com\/az-labor-employment-law\/blog\/employee-confidentiality-rights\/","title":{"rendered":"Employee Confidentiality Rights"},"content":{"rendered":"

Employee confidentiality rights are an increasingly controversial legal topic. On the one hand, federal and state law<\/a> protect an individual\u2019s 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\u2019s pretty cut-and-dry when it comes to your private phone, messages, and mail, but the boundaries become blurry when you\u2019re communicating private information on a company\u2019s computer system, or when you bring private, personal possessions onto company property.<\/p>\n

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\u2019t ask an employee, but outside of that an employer is generally free to request private information that is relevant to the employee\u2019s job.<\/p>\n

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.<\/p>\n

Can your employer search your workspace?<\/h2>\n

The courts have determined that an employee\u2019s 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\u2019s personal possessions (purse, handbag, briefcase) are generally safe from searches. Second, an employee\u2019s 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\u2019s 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).<\/p>\n

Can your employer search your computer and email?<\/h2>\n

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\u2019s 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.<\/p>\n

Can your employer search your vehicle?<\/h2>\n

If you\u2019re 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\u2019t 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.<\/p>\n

Can your employer monitor your phone calls, text message, and voicemails?<\/h2>\n

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\u2019s phone call when it\u2019s evident that it\u2019s a personal call. Any communications on your private electronic devices are confidential.<\/p>\n

Can your employer require you to take a drug test?<\/h2>\n

Arizona is an \u201cat-will\u201d 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.<\/p>\n

Can your employer search you when you leave work?<\/h2>\n

Companies have the right to search employees if they have probable cause, as long as the search isn\u2019t overly invasive. Employers who regularly search employees without probably cause, or who discriminately search certain employees, may be liable for invasion of privacy.<\/p>\n

Can your employer require you to take a polygraph test?<\/h2>\n

The Employee Polygraph Protection Act (EPPA<\/a>) 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.).<\/p>\n

Can your employer monitor your actions with security cameras?<\/h2>\n

Companies are allowed to place and monitor security cameras in public areas of the business. Cameras aren\u2019t allowed in bathrooms or changing areas.<\/p>\n

Are an employee\u2019s comments during an investigation kept confidential?<\/h2>\n

While managers and supervisors are required to respect employees\u2019 privacy<\/a>, it may be necessary to share an employee\u2019s 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\u2019s policies in its employee handbook will govern what can be kept confidential and what should be reported to the human resources team.<\/p>\n

Confidential questions<\/h2>\n

There are a handful of topics that are considered \u201cprotected classes.\u201d 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:<\/p>\n