Larkin Hoffman Daly & Lindgren Ltd.

In the two and one-half years since the Minnesota Supreme Court recognized a right to privacy, employers at the policymaking level have had to chart a path between respecting employee privacy on the one hand and ensuring the safekeeping of trade secrets and employees on the other. A failure to walk the proper tightrope between employee privacy and exercising reasonable supervision can create liability for companies from a host of sources. Policymakers should be involved in striking the appropriate balance between those two concerns.

In Lake v. Wal-Mart Stores, Inc., the Minnesota Supreme Court recognized claims for "intrusion upon seclusion," and "publication of private fact." At the risk of oversimplification, that case created potential liability for employers that invade too deeply into an employee’s privacy, or share private information about employees with third parties.

On the surface, one would think that an employer that is mindful of these relatively new types of claims would be able to create a more hospitable, and inviting workplace by assuring employees that it will respect their privacy.  Unfortunately, however, employers that are too mindful of employee privacy may encounter other risks and face potential liability flowing from violent employees and sexual harassment.

Harassing or even violent employees often provide clues about their personalities and dangerous propensities that may trigger an employer’s obligation to investigate and respond. For example, an employee that speaks, even in jest, about bringing a gun to work cannot be ignored. Similarly, rumors of an employee’s off-duty criminal behavior i.e., rape charges, can only be ignored at the employer’s peril. A company that receives information about such behaviors may be later found to have negligently retained that employee if that worker should injure co-workers or customers in the future.

The obvious method of evaluating the risk posed by such employees is to monitor their workplace behavior, and sometimes even their off-duty behavior. Searching employee lockers, putting employees under surveillance, and reading employee e-mail can readily illuminate an employee’s dangerous propensities. Providing the gathered information to supervisors and co-workers could forestall or prevent acts of violence and harassment from ever occurring at work. Such efforts at detection and evaluation run headlong into the employee’s right of privacy.

The Right of Privacy in Minnesota

Until mid-1998, employers only needed to concern themselves with avoiding liability for defamation and certain statutory protections, e.g., the federal wiretapping statute. Today’s legal landscape, however, includes court-fashioned remedies and rights for workers. The claim for "intrusion upon seclusion" consists of a wrongful prying into a person’s solitude which would be "highly offensive" to a reasonable person, causing damages to the plaintiff. Recording employee phone calls, using video surveillance, private investigators and even searching telephone records could constitute "intrusion upon seclusion," if committed against employees without proper safeguards.

The "publication of private fact" claim consists of the public disclosure of private facts which would be offensive to a reasonable person, which are not of legitimate public concern, and which cause damage to the plaintiff. An employer could inappropriately publish private facts when conducting sexual harassment investigations, handling workers’ compensation claims, providing employment references and handling personnel files.

There are several safe harbors, in which communications about employees will not lead to the creation of any liability. For example, communications with legal counsel will receive immunity from any such claims, and policymakers and Human Resource professionals should feel free to communicate with legal counsel about any employee issue. Similarly, communications to police officers i.e., reports of potential criminal activity, should generally be free from risk provided those reports are made in good faith. Finally, if employers disclose the extent to which they monitor employee behavior, and the employee acknowledges and accepts those terms as conditions of employment, the employer will have greatly mitigated any potential liability.

The Dilemma

This brings us full circle to the initial problem posed by this article -- maintaining employee morale while disclosing the employer’s plans and right to engage in a certain degree of workplace monitoring. Employees may very well resent intrusions into what they perceive as workplace privacy i.e., monitoring of their telephone calls, surveillance, and investigations. Those same employees, however, if given to understand that the intrusions upon their privacy are for their own protection, such as the prevention of violence in the workplace, may be more likely to view the employer’s practices as a neutral, or potentially even positive aspect of the employment environment.

Practice Pointers

Employment policies should explicitly state the degree to which the company will monitor employee behavior i.e., monitoring of phone calls, reviewing e-mail, and inspecting website use. Those same policies must be carefully worded to avoid assuming any greater obligations for employee protection than the employer already owes the employee, while emphasizing that the policies are for the good of all. To the extent an employer needs to conduct an investigation into harassment or other employee misconduct, the utmost care and consideration should be given to confidentiality. The publication of any information about an investigation, or an employee, should be restricted to those people with a legitimate need to possess the information. Particularly sensitive employee information such as medical and insurance information should be maintained in a separate file, so that not even perusal of an employee’s personnel file will yield the most delicate of personal information. When employers are asked to provide information to third parties, each request must be carefully considered. Requests for information by potential employers, governmental entities and litigants may each require a different response depending upon the circumstances. Again, mitigating measures include the use of acknowledgment forms to establish that the employee has authorized the release of information, or even insistence upon a court order or subpoena before producing the data.

Conclusion

Employers and policymakers that are mindful of the above issues should be able to chart a course between the myriad privacy concerns and safety obligations they assume by virtue of their relationship with employees. These issues merit consideration at the highest levels, however, since they can affect employee retention, recruitment and legal liability.