In my experience dealing with workplace issues, I have found that, in general, employees believe that they have constitutional rights protecting free speech and privacy in the workplace; after all, this is a free country, right? The fact is that only government employees (federal, state, local) have such rights, which are based on the first and fourth amendments to the U.S. Constitution. Employees of non-government employers do not have that constitutional protection in the workplace but do have protected speech and privacy rights in certain instances.
The National Labor Relations Act (NLRA), believe it or not, provides protection to both unionized and nonunionized employees in certain instances. The NLRA protects the rights of employees to engage in “concerted activity”, which includes discussing work-related issues, such as safety concerns, work schedules, pay or employee benefits (i.e. wages, hours and working conditions) with each other. For instance, this comes up frequently in the case of employer policies prohibiting employees from sharing their pay rates with each other, which is clearly protected under the NLRA.
Regardless of the NLRA protections, employee feedback and input should be encouraged and valued when it is in the context of improving the work environment and for the collective benefit of employees and employer. As noted in a previous post, one of my Ten Principles of Positive HR is to “maintain open lines of communication between management and non-management and encourage employees to come forward with employment-related concerns.” What is less clear is how to deal with employees who attack their employer/manager/supervisor through social media or other channels. This has been the focus of a great deal of litigation by the NLRB in the past few years, and I plan to devote a separate blog to this subject (stay tuned!).
Like first amendment freedom of speech, an employee of a governmental employer may have a protected expectation of privacy arising out of the fourth amendment to the Constitution. However, like the first amendment, the fourth amendment doesn’t apply to non-governmental employers. For those employees, there is common law (i.e. laws created by the local, state and federal courts) establishing privacy interests in the workplace. Both of these bodies of law (constitutional and common law) require the same thing: a determination of whether the employee’s expectation of privacy in that circumstance is reasonable or not.
This right of privacy most often comes up in the employment context in the case of (1) searches of employee lockers/desks/personal belongings, (2) use of employer’s email and internet systems, and (3) searches of vehicles (employee or employer owned). The general rule is that an employee does not reasonably have an expectation of privacy, and therefore does not have a privacy right, when the item(s) they claim to be private are located in a place owned/controlled by the employer and the employer has put them on notice (such as through a written policy distributed to all employees) that there is no privacy right attached to that place. For example, there is no privacy right in emails sent or received by an employee using the employer-provided email service, provided that the employer’s published policy states that. Same for items placed in a locker, desk or vehicle provided by the employer. The question to be answered is whether a reasonable person would have an expectation of privacy in those circumstances.
In summary, free speech and privacy rights in the workplace are not as assured as they are outside of the workplace (that is, as long as our Constitution is not trampled over!). Even so, there should be a balance between employer and employee interests and reasonableness to an employer’s policies.