Employee privacy is one of the more complicated areas of workplace law because there is no single federal statute giving every worker the same level of privacy in every situation. Different rules can apply to background reports, medical information, electronic communications, personnel records, surveillance, and state privacy rights.
Context matters almost every time.
Workplace Privacy Has Multiple Legal Sources
Employers have legitimate reasons to manage company systems, protect information, investigate misconduct, and maintain workplace security. Employees, meanwhile, may have statutory rights involving particular categories of information or particular methods of monitoring.
That makes broad statements such as “employers can monitor anything” or “employees have complete workplace privacy” unreliable.
People reading privacy law discussions should compare general information with federal law, employer policies, and the law of the state where the employee works.
Background Checks Have Specific Rules
Employers may obtain certain background information when making employment decisions, but federal requirements can apply when reports are purchased from consumer reporting companies.
The Federal Trade Commission’s employment background-check guidance explains that the Fair Credit Reporting Act can require a stand-alone disclosure and written permission before obtaining covered employment reports.
Applicants and employees should preserve notices, authorization documents, and related workplace record resources when a consumer report affects employment.
| Privacy Area | Possible Legal Concern | Practical Focus |
|---|---|---|
| Background reports | FCRA procedures | Disclosure and authorization |
| Medical information | ADA confidentiality | Restricted handling |
| Electronic monitoring | Federal/state rules | Policy and method |
| Personnel information | State or specific laws | Access and disclosure |
Medical Information Receives Special Treatment
Workplace medical information can receive protections distinct from ordinary personnel information.
EEOC guidance explains that, with limited exceptions, medical information obtained under the ADA must generally be kept confidential and separate from regular personnel records.
That does not mean medical information can never be disclosed. Certain limited disclosures may be allowed, including circumstances involving accommodations, safety personnel, compliance investigations, or workers’ compensation matters.
Readers considering a workplace dispute may encounter employment dispute guidance during research, but privacy obligations should be verified under the particular federal and state laws involved.
Monitoring Rules Depend on the Situation
Monitoring can involve email, internet use, company devices, cameras, location information, telephone communications, productivity tools, or other technologies.
Whether a specific monitoring practice is lawful may depend on the technology, notice provided, ownership of the device, state consent rules, collective-bargaining obligations, and the type of information collected.
Employers should therefore avoid assuming that a general monitoring policy overrides every other law.
Privacy Expectations Are Easy to Overstate
Using a personal password on an employer-owned device does not necessarily create complete legal privacy. Conversely, ownership of workplace technology does not automatically eliminate every employee protection.
Another mistake is combining all personal information into one category. Medical information, consumer reports, genetic information, communications, and ordinary personnel records may be governed by different legal rules.
When to Get Legal Help
Legal advice may be appropriate when highly sensitive information is disclosed, monitoring appears to violate applicable law, a background report is used improperly, confidential medical information is mishandled, or discipline follows the exercise of a protected right.
Employees should preserve relevant policies, notices, communications, and records without improperly taking confidential employer materials.
Frequently Asked Questions
Can an employer monitor employee computers?
Employers may monitor workplace technology in many circumstances, but the legality of a particular practice depends on applicable federal and state law, the system involved, and the facts.
Are employee medical records private?
Federal disability law imposes confidentiality requirements on certain employee medical information, subject to limited exceptions.
Does an employer need permission for a background check?
When an employer obtains a covered consumer report from a background-reporting company for employment purposes, the FCRA imposes disclosure and authorization requirements.
Treat Each Type of Information Separately
Employee privacy questions should be analyzed by identifying what information was collected, how it was obtained, who received it, what technology was involved, and which law applies. Because state privacy and monitoring rules can differ considerably, workers and employers facing a serious dispute should obtain guidance specific to the jurisdiction and circumstances.
This article is for general informational purposes and is not a substitute for professional legal advice.