Some states have enacted constitutional or statutory provisions guaranteeing their citizens the right to privacy from certain intrusions. In states without these provisions, private employees enjoy relatively little freedom from workplace intrusion. However, they have recourse to four common-law privacy claims.

Intrusion into an Individual’s Private Solitude or Seclusion

An employee may allege that his or her privacy has been violated when an employer unreasonably searches an area where the employee has a legitimate expectation of privacy. Examples include lockers and desk drawers. Likewise, if an employer conducts surveillance in generally private areas, such as in dressing rooms, the employee may allege an invasion of privacy. In the same vein, an employer’s improper questioning of an employee, such as about sexual habits or orientation, may be construed as an invasion of privacy.

The employer’s intrusion in the private affairs of the employee must involve a genuinely private matter and must also be of such a nature that a reasonable person would deem the intrusion to be “offensive.” Employers have the right to access certain information – for example, an employee’s test scores after a company-sponsored training program. But an employer’s inquiry into an employee’s privately funded psychiatric treatment may be viewed as offensive.