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Liandra Izquierdo May 6, 2022 1:21:16 PM 10 min read

What You Need to Know About Employee Privacy

As a good rule of thumb, an employer should stay out of the personal and private lives of its employees. Not only are there statutory protections in place to prevent the overreach of an employer, but the less intrusion an employer has into the lives of an employee, the more likely an employer is to build good will with their workforce. 

That being said, there are circumstances where an employer may be interested in prohibiting or limiting the conduct of its employees, which may necessarily brush against the employee’s right to privacy.  

What is the right to privacy? 

The “right to privacy” is the term encompassing various legal theories that restrain government and private actions that threaten the privacy of individuals.  

There is no one statute that solely governs the right to privacy. Even the U.S. Constitution does not directly grant the right to privacy. Instead, the right to privacy is best understood as the flow of common law principles applied in the interest of privacy.  

The State of Florida takes privacy very seriously and expressly recognizes the right to privacy in the state Constitution. Fla. Const. Art. 1 § 23.  

Is there a difference between private and public employee privacy laws? 

Generally, Florida recognizes that employees have a right to be free from intrusive conduct by their employers. 

Private sector employees have less privacy protections than public, or government, employees. This is because public employees are governed directly by the Fourth and Fourteenth Amendment of the U.S. Constitution.  

Private sector employees have limited privacy rights, as they do not enjoy the benefits of the Fourth and Fourteenth Amendment. These employees garner their rights, primarily, through the use of employment agreements and employee handbooks. These documents will outline the scope of a private sector employees’ privacy rights in combination with Florida’s statutory guidelines. As such, it is important for employees to carefully review all signed agreements while employers must take care when drafting their privacy policies.  

Generally, if there is a business reason to do so, an employer can govern an employee’s personal conduct. This is a balancing act, as an employer does not want to build ill will with their employees or otherwise create an alienating work environment. Therefore, monitoring an employee’s conduct requires balancing the employee’s privacy interests against the need to prevent possible claims of employee misconduct, negligent hiring, or other employee tortious behavior.  

What invasion of privacy claims are recognized in Florida? 

Florida recognizes three civil causes of action for the invasion of privacy.  

Intrusion Upon Solitude or Seclusion 

Public Disclosure of Private Facts 

Appropriation of One’s Name or Likeness 

Employees shows that there was an intentional intrusion “physical or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.” Benn v. Florida E. Coast Ry. Co., 1999 WL 816811 (S.D. Fla. 1999)(citation omitted) 

An employer cannot publish to a large number of people private facts whose publication would be highly offensive to a reasonable person and 

are not of public concern. 

 

Employers cannot publish, print, display, or otherwise publicly use for trade, commercial, or advertising purposes, the name, portrait, photograph, or other likeness of an employee without express written or oral consent 

 

These claims can be avoided by understanding the contours of an employees’ right to privacy. 

First, it’s important to note that communications carry special protections under Florida law. Pursuant to § 934.03, oral, electronic, and wire communications are deemed private unless both parties' consent, and these communications cannot be recorded unless a specific statutory exception applies. Jatar v. Lamaletto, 758 So. 2d 1167, 1169 (Fla. 3d DCA 2000). For oral communications to remain private, the speaker must have an expectation of privacy along with a social recognition that the expectation is reasonable. State v. Smith, 641 So. 2d 849, 852 (Fla. 1994). 

That being said, an employee does not have an absolute right of privacy in their office or an employer’s black of business. This means things like conference calls may be considered public for the purposes of the right to privacy.  

For this reason, employees can be monitored. Video surveillance of a business’ premises and employees is generally permitted; however, areas such as restrooms and locker rooms have a reasonable expectation of privacy. Meanwhile, an employees’ emails or Internet use on an employer’s computer systems generally is permitted because there is no expectation of privacy in the employer’s servers.  

What is the standard for violating an employee’s privacy? 

Florida courts weigh two factors: 

  1. Did the employee have a legitimate expectation of privacy in the item seized or searched? 
  1. Why did the employer perform this intrusion? 

First, an employee will have to demonstrate that they reasonably believed that the area searched was private. The courts will examine the facts to determine if this belief was reasonable and if this area was, in fact, private.  

Once it is determined whether the employee had a legitimate expectation of privacy, courts will look to see why the employer performed the intrusion. The intrusion must be for a legitimate, job-related reason. Moreover, the method of the intrusion must be the least intrusive means of gathering the information. This leads to tricky situations, particularly those involving the search of an employee’s desk, locker, or personal belongings.  

For example, Johnny Employee keeps a personal, locked safe in office. This safe contained his personal documents like his passport. Marvin Employer was worried about his employees' using drugs and wanted to search Johnny Employee’s safe. Without Johnny’s permission, Marvin opened the safe, searched it, and found nothing. Did Johnny have a reasonable expectation of privacy to the safe? 

Probably so!  

The safe was a personal item and used to contain solely personal documents. Regardless of the fact the safe was located in his office, an argument can be made that the locking mechanism and use of the safe supersedes Marvin Employer’s reason for intrusion. However, Marvin can argue that enforcing the drug protocol for the business was a legitimate, job-related interest that required an intrusion. Despite this, Johnny can argue that asking for consent to open the safe would be less intrusive than prying it open.  

Common privacy questions 

Can I ask an applicant for employment to reveal sealed arrest and conviction records? 

No with limited exception 

Can I require drug testing at my business? 

Yes 

Can I prohibit personal use of the internet? 

Yes 

Can I prohibit personal use of the telephone? 

Yes 

Can I monitor employee phone calls? 

No and requires consent of all parties  

Can I monitor company emails? 

Yes 

Can I monitor personal emails? 

No and requires consent of all parties to disclose 

Can I prohibit posts on social media about my business? 

No unless defamatory 

Can I require employees to place personal electronics in private spaces to prevent espionage? 

Yes 

Can I randomly search employees at work? 

Yes  

Can I randomly search employees out of the office? 

No 

Can I search my employee’s personal vehicle? 

No 

Can I use video surveillance? 

Yes, except in restrooms and lockers 

NOTE: These answers are for the general application of Florida law. Some answers may change depending on the facts and circumstances. It is best to consult a lawyer prior to deciding which actions to pursue.  

What do I do next? 

Development of workplace privacy policies requires careful consideration of the constitutional and statutory rights applicable to both the employer and their employees. A licensed lawyer can assist with the assessment of any privacy suggestions by evaluating the needs of the business with the privacy expectations of an employee.  

If you are interested in developing a privacy policy, reach out to our attorneys in order to create a proactive and preventative business strategy that complies with these rights to privacy.