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Privacy in the Workplace: What Level of Privacy Can an Employee Expect at Work?

by Natalie Lorenz, Associate

Employers often wonder: Can they look at an employee’s emails?  Record an employee’s calls?  Go through an employee’s desk?

To answer these questions, employment law attorneys first must determine which laws might apply in a particular situation.  In Illinois, attorneys would consider at least the following: (1) the Constitution, (2) the Federal Electronic Communications Privacy Act (“ECPA”), (3) the Illinois Eavesdropping Law, and (4) the common law tort of “intrusion upon seclusion.”

Unless the employer in question is a government entity, the Constitution most likely will not apply to protect its employees.  This is due to the state action doctrine, which provides that the conduct of private persons need not comply with the Constitution.  Nonetheless, Congress may still enact statutes such as the ECPA, which do apply to private employers.  Under the ECPA, employers are subject to civil and criminal penalties if they intercept a wire, oral, or electronic communication.  Courts have interpreted the term interception to mean the acquisition of information contemporaneous with transmission.  That means that as long as an employer is looking at stored emails, rather than catching them as they come in, there is no violation of the ECPA.  However, recording an employee’s calls as they are taken would likely be a violation.

Another statute employers should be cognizant of is the Illinois Eavesdropping Law.  Under this statute, it is illegal, among other things, to use an eavesdropping device, in a surreptitious manner, to overhear, transmit, or record a private conversation, unless all parties consent.  Looking at the plain language of the statute, the easiest way an employer could avoid liability under this statute would be to take away an employee’s expectation of privacy by putting certain language in the employer’s policy manual.  For example, the employer could include language reserving the right to record the employee’s telephone conversations.

Finally, employers must also be mindful of the tort of “intrusion upon seclusion” in Illinois.  The core of this tort is the offensive prying into the private domain of another, the keyword being “private.”   The central question is whether a person has an expectation of privacy in the area searched, videotaped, recorded, etc.  The expectation of privacy in the employment context is not as strong as in the home, and there is no such expectation in an open and undifferentiated work area.  Therefore, employment law attorneys will ask: (1) was the area used exclusively by one employee, or did others have access? (2) was the area in plain view? and (3) did office regulations place employees on notice that certain areas were subject to intrusions?  If the area is open and shared by many, there is no expectation of privacy, and no liability for intrusion upon seclusion.

Given the above, whether the employer’s policy manual includes policy language regarding its employees’ expectation of privacy could be the difference between employer liability versus non-liability under a variety of laws.  Employers should review their manuals to determine whether they should be updated in light of the above, and should have their employees sign off that they have read and understand their privacy rights.

Contact your employment law attorneys with Mathis, Marifian & Richter, Ltd. in Belleville, Illinois, for additional education on your rights regarding Privacy in the Workplace.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.


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