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Privacy in the workplace may be a lasting victim of the war on terrorism. Just six months ago, privacy was a hot issue, with new initiatives gaining momentum at the state and federal level. In 2000 alone, California lawmakers introduced 33 privacy bills, including a comprehensive workplace e-mail privacy bill that cleared the California legislature in August. But this trend has reversed since Sept. 11. The nation’s preoccupation with safety and security has tilted the balance away from worker privacy, opening the door for companies to impose new measures that, until recently, would have been considered unacceptable. One of the most disturbing trends may be the willingness of private companies to share employee data with law enforcement officials. In the past, the monitoring of employee e-mail and Internet use was largely a private transaction between a company and its employees, and incidents of unauthorized use were dealt with through counseling or discipline. But recent anti-terrorism legislation allows employers to enlist federal law enforcement agencies in investigating cases of unauthorized use of technology resources. The Federal Bureau of Investigation has been knocking on company doors asking for employee personnel records — with no subpoena or warrant. And a recent survey by the Privacy Council revealed that, in the days after Sept. 11, airlines, hotels and other travel-related services voluntarily turned over customer and employee information to federal investigators. RETHINKING WHAT IS ‘REASONABLE’ Employees already have a diminished expectation of privacy at work. Except in areas where federal and state laws have created specific protections — polygraphs, background checks, and medical screening and testing, to name a few — the private employment relationship is governed largely by the common law of invasion of privacy. Under the classic formulation of the tort, one who intentionally intrudes, physically or otherwise, on the private affairs of another is subject to liability for invasion of privacy, but only if the intrusion would be “highly offensive to a reasonable person.” In deciding whether an intrusion is highly offensive, courts examine the degree of intrusion, the context, conduct and circumstances surrounding the intrusion, as well as the intruder’s motives and objective, the setting in which he intrudes and the expectations of those whose privacy is invaded. It is not difficult to see how, in these times of terrorist cells and anthrax spores, the definition of what is a “reasonable” intrusion could shift in response to changed perceptions about the degree of risk and the need for safety. Take the opening of employees’ personal mail, for instance. Federal law makes it a criminal offense to take, obstruct, or open any letter in the postal system before it has been delivered to the person to whom it was directed. What’s more, at least two federal courts have found that opening an employee’s personal mail can constitute an invasion of privacy. Does this mean that a company in Washington faces civil or criminal liability if it decides to open all employee mail — personal and business-related — at a secure, off-site location to avoid possible anthrax exposure to its employees? Probably not. As long as employees are told about the procedure in advance, and the company limits its screening to identifying suspicious or dangerous substances, legitimate safety concerns would likely trump any claim of invasion of privacy. TOP SECURITY THREATS Even before Sept. 11, workplace violence and Internet/intranet security ranked first and second as the top concerns of corporate managers, according to an annual survey of Fortune1000 companies conducted by Pinkerton’s. Now that these issues are receiving even greater public attention, employers may feel inexorable pressure to step up their screening, surveillance, and monitoring of employees. Criminal background checks, a common device to screen out applicants, are rarely used to probe current employees. That may be changing. Companies that specialize in background checks report a deluge of requests to investigate employees. Interestingly, their job has been made more difficult by the Gramm-Leach-Bliley Act, which restricts access to the very type of credit and financial information frequently used in background investigations. Companies in certain industries, such as chemicals and biotechnology, may decide the background checks are not simply prudent but necessary to protect them against negligent hiring or retention suits. The federal Fair Credit Reporting Act regulates the manner and use of background checks by private employers, including investigations of current employees. This law requires, among other things, that employees be notified in advance that a background check is being done and be informed of the results of the investigation before suffering any adverse employment action. Companies that have not previously done employee background checks will have to implement these notice procedures or risk incurring liability for snooping into the past of their employees. Moreover, they will have to be careful about what they do with the information they obtain. Federal and state laws limit the use of arrest and conviction records in employment decisions. For instance, in many states it is illegal to use sealed or expunged conviction records as a basis for discharging or disciplining an employee. And the federal Equal Employment Opportunity Commission has said that arrest records (as opposed to convictions) do not generally have a close connection with job qualifications, so that a policy of terminating employees on the basis of prior arrests without some evidence of a strong business necessity could be unlawful under Title VII. The high cost of background checks — up to $5,000 per employee — might tempt companies to investigate only discrete groups of employees who are perceived as creating a greater security risk, such as foreign nationals. Alternatively, an employer may decide to check the Immigration and Naturalization Service status of non-U.S. citizens to ensure that they have not overstayed their visas. Such targeted measures present significant legal risks. Under the Immigration Reform and Control Act of 1986, for example, it is unlawful to single out employees based on citizenship status, unless such treatment is required to comply with a law, regulation, executive order or government contract. On the other hand, citizenship status could become a legitimate selection criterion in some industries and for some safety-sensitive positions. The federal air security bill enacted last fall, for example, requires that all newly hired baggage screeners be U.S. citizens. The American Civil Liberties Union has sued to block the measure, noting that no such restriction exists for pilots, mechanics, flight attendants and other airline employees. Like background checks, employer monitoring of e-mail and Internet use has become commonplace, spawning a $140 million industry. Electronic monitoring will doubtless increase in the coming months as companies look to protect their systems from intruders and to identify employees who may pose a safety or security risk. Nothing in the current law will slow down this advance. For the most part, employers have wide latitude to monitor employee computer use, even in the absence of consent, so long as they do not create an expectation of privacy. A carefully worded electronic communications policy is usually sufficient to dispel any notion of privacy. Thus, in the absence of state or federal law, employees have no protectable interest in communications sent or received at work. Recent failed legislative attempts to require employee notification of electronic monitoring, including the Notice of Electronic Monitoring Act, are unlikely to resurface in the current climate. Indeed, the IT professionals who are chiefly responsible for implementing workplace monitoring reported in a recent survey that they were willing to trade more of their own privacy for greater protection from terrorist threats. GREATER ROLE FOR LAW ENFORCEMENT The line between private and public action begins to blur as companies increasingly involve law enforcement agencies in monitoring and surveillance. For instance, if a company comes across a controversial e-mail while monitoring employee communications — let’s say, a message extolling the virtues of al-Qaida or advocating revenge for the Afghanistan campaign — should the company call the police or the FBI? Would it face liability if it failed to notify law enforcement and the employee committed an act of violence? Given that employees have little or no privacy interest in their electronic communications, and that the risks associated with inaction are so great, the decision to contact law enforcement is a relatively easy one. Whether the FBI will be able to manage a plethora of information from private sector surveillance is another question. In several cases, companies have come under fire for cooperating too closely with police to root out employee wrongdoing. For instance, a jury awarded a former Wal-Mart employee $1.65 million after company employees, in conjunction with local police, raided his home looking for stolen merchandise. The result certainly would have been different if the employee had been suspected of manufacturing chemical or biological agents at home. Other workplace privacy suits have sought to curb the dissemination of confidential employee information, such as Social Security numbers. Courts are unlikely to entertain these types of claims in the future if the disclosure is even remotely related to public safety or security. The privacy debate will continue to focus on striking a balance between an employer’s interests and the degree of intrusion on employee privacy. Concerns about workplace security have, for the time being at least, shifted the balance decidedly in favor of the employer. Christopher A. Weals is a partner in the labor and employment group in the Washington, D.C., office of Seyfarth Shaw.

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