Return to the Syllabus

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*Assistant Professor, University of Cincinnati, J.D., 1991, Duke University

School of Law, B.A., 1988, College of William & Mary. Many thanks to Matthew M.

Malloy, Esq., Professor Ronald Krotoszynski, Jr., Professor Dorothy Brown,

Charles Logan, Esq., and Nancy Olson, Esq. for their help with this Article.

Thanks also to the faculty of the University of Cincinnati College of Law for

their many insightful comments during our faculty workshops. All errors and

omissions are my own.

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SUMMARY:

... Are these merely workplace anecdotes drawn from the Dilbert comic strip? Is

this the condition of oppressed laborers in totalitarian society a la 1984?

Actually, they represent a Dilbert-esque litany of "sad but true" stories; all

of these cases arose in the American workplace, where more and more companies

routinely spy on their employees. ... The federal and state courts have for the

most part upheld employer monitoring, according little or no weight to employee

privacy interests, presumably because they do not yet understand the

intrusiveness of the new monitoring technology in the workplace. ...

Commentators have catalogued countless invasions of employee privacy and abuses

of employer monitoring. ... Recent literature in the area of non- governmental

employee privacy protection has focused on, or advocated, greater federal

regulation of the new technologies that employers use to monitor the workplace.

... One of the more extreme proposals suggested to solve the problem of employee

privacy, at least with respect to electronic monitoring and surveillance, has

been Professor Laurence Tribe's proposal of a Twenty-Seventh Amendment to the

United States Constitution. ... In fact, at least one court has found that

workplace surveillance conducted by a government employer through electronic

means is not justified under the "reasonableness" approach used to judge the

constitutionality of manual workplace searches, on the grounds that electronic

monitoring of activities and conversations is more intrusive of the privacy

interests of employees than manual searches. ...

TEXT:

[*825]

One employer surreptitiously reads an employee's electronic mail and discovers

that the company's planned holiday party has been referred to as the "Jim Jones

Kool- Aid Affair." The employee is promptly fired. n1 Another company places a

device in employees' chairs to measure worker "wiggling," presumably because

more wiggling means less working. n2 One employer even monitors each employee's

bathroom breaks and posts in the office the total number of minutes per day each

employee spends in the bathroom. n3

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n1 Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996) (dismissing

employee's wrongful discharge claim on finding that even though employer

repeatedly assured employees that e- mail messages were private and

confidential, employees had no reasonable expectation of privacy). In another

case, an employer read an employee's electronic mail, learned that the employee

also worked as a male stripper, and promptly fired the employee. Jeffrey S.

Kingston & Gregory L. Lippetz, E-Mail Privacy Rights Can Be Tricky, Bus. J.,

Feb. 1, 1993, at 21, 21. A recent internet monitoring situation arose in a law

firm where an attorney who accessed pornographic materials at work was

disciplined by the management committee. Carrie Johnson, From Privacy to Porn:

Law Firms Surf for Internet Policies, Legal Times, Jan. 26, 1998, at 77.

n2 Robert G. Boehmer, Artificial Monitoring and Surveillance of Employees: The

Fine Line Dividing the Prudently Managed Enterprise from the Modern Sweatshop,

41 DePaul L. Rev. 739, 751 (1992).

n3 Sharon Danann, 9to5, Working Women Education Fund, Stories of Mistrust and

Manipulation: The Electronic Monitoring of the American Workforce 22 (1990).

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Are these merely workplace anecdotes drawn from the Dilbert comic strip? Is this

the condition of oppressed laborers in totalitarian society a la 1984? Actually,

they represent a Dilbert-esque litany of "sad but true" stories; all of these

cases arose in the American workplace, where more and more companies routinely

spy on their employees. Indeed, the American Management [*826] Association

reports that nearly two-thirds of its members conduct some form of electronic

monitoring or surveillance of their employees. n4 Employees and job applicants

are increasingly subject to monitoring, including office and cubicle searches,

video surveillance, electronic mail monitoring, and health and psychological

screening. n5

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n4 Rosemary Orthmann, Most Major Employers Monitor Workers Electronically, 6

Empl. Testing (Univ. Pub. Am.) 77, 77 (May 1997) (providing results of 1997

American Management Association (AMA) survey showing 63% of its members

conducted electronic monitoring or surveillance of employees).

n5 See Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory

of Liability for Invasions in Public Places, 73 N.C. L. Rev. 989, 1017 (1995)

(noting startling increase in monitoring of employees and customers); see also

Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. Rev. 1335, 1361-66

(discussing increasing use of sophisticated surveillance technologies); Charles

Piller, Bosses with X-Ray Eyes, MacWorld, July 1993, at 118, 120 (noting that in

1993 about 22% of employers engaged in searches of their employees' electronic

mail or other communications, with the figure rising to 30% in companies with

more than 1000 employees). Recent examples of employer monitoring abound. See,

e.g., Amoco Petroleum Additives Co. v. Jackson, 964 F.2d 706, 707 (7th Cir.

1992) (installing video camera in ceiling of hallway leading to women's locker

room to verify rumors that male supervisor was visiting locker room with female

employee); Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 613 (3d Cir. 1992)

(employer drug testing and personal property search); Gretencord v. Ford Motor

Co., 538 F. Supp. 331, 332 (D. Kan. 1982) (employer vehicle search); Soroka v.

Dayton Hudson Corp., 1 Cal. Rptr. 2d 77, 79 (Cal. Ct. App. 1991) (psychological

screen); Cort v. Bristol-Myers Co., 431 N.E.2d 908, 909 (Mass. 1982)

(questionnaire with highly personal questions); K-Mart Corp. v. Trotti, 677

S.W.2d 632, 634 (Tex. Ct. App. 1984) (search of employee locker and purse);

Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111, 112 (W. Va. 1984)

(polygraph testing).

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Technological advancements have played a major role in this workplace revolution

by greatly enhancing employers' ability to keep tabs on employees and providing

the unprecedented ability to monitor virtually every aspect of a worker's

activities. n6 Because [*827] the technology allows surreptitious and

continuous surveillance, employee privacy can be almost entirely eliminated. n7

The growing threat this revolution poses to commonly accepted notions of privacy

mandates a reexamination of workplace privacy protections for private-sector

employees. n8

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n6 Louis D. Brandeis and Samuel D. Warren warned, in their seminal 1890 article

on privacy, that "numerous mechanical devices threaten to make good the

prediction that 'what is whispered in the closet shall be proclaimed from the

housetops.' " Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4

Harv. L. Rev. 193, 195 (1890). More recently, Professor Erwin Chemerinsky has

stated, It is inevitable that personal privacy will be one of the most

significant pressure points in our national fabric for most of the 1990's.

Advancing technology, depersonalization of the workplace and other social

environments, a growing population and a strong political inertia favoring

majoritarianism-all can be expected to create a greater personal need for a

sense of space and dignity. The conflict created by those tensions will surely

need to be resolved in the courts again and again. quoted in, Richard C. Reuben,

Privacy: The Issue of the '90s, Cal. Law., Mar. 1990, at 38, 39 (quotation

unattributed).

n7 Some types of monitoring that occur in the workplace border on the bizarre.

See supra notes 1-3 and accompanying text; see also Note, Addressing the New

Hazards of the High Technology Workplace, 104 Harv. L. Rev. 1898, 1903 (1991)

(noting that through the use of computerized phone-system technology, employers

can record length, time and destination of phone calls); Gene Bylinsky, How

Companies Spy on Employees, Fortune, Nov. 4, 1991, at 131, 132, 136 (stating

that computer software packages are available that allow supervisors access to

employees' computer screens without employees' knowledge); Sharon Machlis,

Gotcha! Monitoring Tools Track Web Surfing at Work, Computer World, Apr. 7,

1997, at 1, 1 (discussing new monitoring devices that allow employers to keep

track of an employee's internet usage).

n8 See Office of Tech. Assessment, The Electronic Supervisor: New Technology,

New Tensions 102-04 (1987) (recognizing possibility of illegitimate uses of

monitoring, such as frustration of union organizing efforts, circumvention of

employment discrimination laws via intensified scrutiny of protected employees,

and identification of whistleblowers). In addition, the Office of Technology

Assessment report noted that employers could use monitoring techniques such as

telephone call accounting to gather information about employees' personal

contacts that could be used to harass them. Id. at 106.

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It is perhaps surprising that despite this growing threat to privacy, there is

usually no legal remedy for employees. n9 The federal and state courts have for

the most part upheld employer monitoring, according little or no weight to

employee privacy interests, presumably because they do not yet understand the

intrusiveness of the new monitoring technology in the workplace. n10 [*828]

Neither Congress nor state legislatures have acted to fill the void and provide

comprehensive statutory protection to workers. n11 Privacy, ostensibly one of

our society's most cherished values, is gradually disappearing in the workplace.

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n9 See Kurt H. Decker, Employee Privacy Law and Practice 3.3, at 108, 3.5 at 123

(1987 & Supp. 1997) (discussing lack of remedies available to most private

sector workers for invasion of privacy claims); 1 L. Camille Hebert, Employee

Privacy Law 1:03 (1996) (stating that "[w]hen all the laws relevant to the

issues of employee privacy are taken into account, employees have very little

privacy indeed"). See generally Matthew W. Finkin, Privacy in Employment Law at

xx-xxi (1995) ("[T]he law of employee privacy in the United States . . . is . .

. a mess.").

n10 See, e.g., Epps v. St. Mary's Hosp., Inc., 802 F.2d 412, 416-17 (11th Cir.

1986) (finding that interception of lunch hour call between coworkers was within

business interests); Thomas v. General Elec. Co., 207 F. Supp. 792, 799 (W.D.

Ky. 1962) (finding no invasion of privacy when employer photographed employees

for business purposes); Jackson v. Nationwide Credit, Inc., 426 S.E.2d 630, 632

(Ga. Ct. App. 1992) (finding that use of speakerphone to monitor employee's

telephone call was not unreasonable intrusion into private affairs, when

monitoring was routine and known practice of employer). In one case, a company,

after receiving reports of employees having clandestine meetings, installed a

camera at the entrance hallway to the women's locker room. The court dismissed

the subsequent suit for invasion of privacy and intentional infliction of

emotional distress. Courts Apply Broad Preemption Test to Emotional Distress,

Privacy Claims, Wash. Insider (BNA) 30 (July 14, 1992).

n11 See infra Part II (discussing current inadequacy of employee privacy

protection and shortfalls of proposed solutions).

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Central to the understanding of privacy rights in the American workplace is the

public/private distinction. n12 Simply put, the extent of employees' privacy

rights in the workplace depends on whether they work in the public sector or

private sector. Because constitutional rights operate primarily to protect

citizens from the government, "state action" is required before a citizen can

invoke a constitutional right. n13 The manner in which a government employer

treats its employees is by definition state action. Because of this dichotomy,

public-sector employees enjoy far greater privacy rights than do private-sector

employees. For example, the Fourth Amendment protects all government workers

from unreasonable searches and seizures by the government. n14

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n12 For a comprehensive discussion of the public/private distinction see

generally Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. Rev. 503, 504

(1985); Jennifer Friesen, Should California's Constitutional Guarantees of

Individual Rights Apply Against Private Actors, 17 Hastings Const. L.Q. 111, 112

n.2 (1989); Charles A. Reich, The Individual Sector, 100 Yale L.J. 1409, 1429-30

(1991); Clyde W. Summers, The Privatization of Personal Freedoms and Enrichment

of Democracy: Some Lessons from Labor Law, 1986 U. Ill. L. Rev. 689; Scott E.

Sundby, Is Abandoning State Action Asking too Much of the Constitution?, 17

Hastings Const. L.Q. 139, 139 n.1 (1989).

n13 For a thorough discussion of the current state action requirement, see

Ronald J. Krotoszynski, Jr., Back to the Briarpatch: An Argument in Favor of

Constitutional Meta-Analysis in State Action Determinations, 94 Mich. L. Rev.

302 (1995). Many commentators have noted that state action is the basis for

distinction between public and private activities. E.g., Paul Brest, State

Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. Pa. L.

Rev. 1296, 1301 (1982) ("The doctrine of state action is an attempt to maintain

a public/private distinction by attributing some conduct to the state and some

to private actors."); Chemerinsky, supra note 12, at 504 ("State action

doctrines remain the dividing line between the public sector, which is

controlled by the Constitution and the private sector, which is not.");

Christopher D. Stone, Corporate Vices and Corporate Virtues: Do Public/Private

Distinctions Matter?, 130 U. Pa. L. Rev. 1441, 1483 (1982) (stating that "state

action is the dominant factor to consider"); see also Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 349 (1974) (speaking of "the essential dichotomy . . .

between deprivation by the state . . . and private conduct").

n14 U.S. Const. amend. IV ("The right of the people to be secure in their

persons, houses, papers and effects, against unreasonable searches and seizures,

shall not be violated . . . ."); see O'Connor v. Ortega, 480 U.S. 709, 724-25

(1987) (plurality opinion) (holding that government doctor's privacy interest

must be balanced against government's need to supervise, control, and

efficiently operate workplace).

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[*829]

Private-sector employees, however, do not enjoy the same level of privacy

protection because employer actions rarely constitute state action. n15 For the

typical private-sector employee, the only sources of legal protection against

intrusive employer surveillance are claims brought under various state statutes

or the common law tort of invasion of privacy. The protection provided by these

remedies varies widely from jurisdiction to jurisdiction and in some cases has

not protected against even outrageous forms of employer intrusions. n16

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n15 See Chemerinsky, supra note 12, at 517-19 (discussing individuals'

difficulty recovering for private-sector violations of privacy and other

rights).

n16 See, e.g., Harris v. Neff, No. 88-1650, 1991 WL 42294, at *7 (D. Kan. Mar.

25, 1991) (finding that memorandum circulated to 110 employees indicating that

individual was no longer employed and had voluntarily entered alcohol and drug

rehabilitation program was not highly offensive to reasonable person so as to

constitute privacy invasion); Fayard v. Guardsmark, Inc., Civ. A. No. 89-0108,

1989 WL 145958, at *2, (E.D. La. Nov. 29, 1989) (holding that employer's

surveillance of employee's house and checking licenses on cars that stopped

there did not constitute unreasonable intrusion on employee's privacy, since all

surveillance occurred from public area); Saldana v. Kelsey-Hayes Co., 443 N.W.2d

382, 384 (Mich. Ct. App. 1989) (concluding that employer's legitimate business

interest in investigating employee's claim of work-related injury outweighed

employee's privacy interest in not being monitored in his home); see also

Decker, supra note 9, at 18-20, 108 (discussing various sources of right of

privacy in Constitution and pointing out that "almost no private sector employer

is bound by these constitutional privacy restraints").

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This public/private distinction stems from the Constitution's protection of

individuals (including private corporations) from governmental restrictions on

liberty, but not from actions by other citizens or private entities. n17 The

Framers believed that government, rather than fellow citizens, represented the

greatest threat to individual autonomy, n18 and by restraining government

action, [*830] hoped to promote greater individual liberty. n19 What they

likely did not foresee was the aggregation of wealth and power that has given

private employers the same capacity to threaten privacy as the government. n20

Thus, the threat originally seen to emanate just from government now arises in

the commercial sector-a threat that from the employee's perspective can be just

as invasive and harmful as government surveillance.

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n17 See generally Sol Bloom, History of the Formation of the Union Under the

Constitution (First Greenwood 1986) 292- 94, 681-83 (1943) (examining historical

developments of the Bill of Rights and concerns about government power as

opposed to private power); Zechariah Chafee, Jr., How Human Rights Got into the

Constitution 6, 8-10 (1952) (discussing the Bill of Rights and its expansion to

address not only federal abuses of power but also state abuses, but not private

power).

n18 The Federalist No. 85, at 521 (Alexander Hamilton) (Clinton Rossiter ed.,

1961) ("The additional securities to republican government, to liberty, to

property . . . consist chiefly in the restraints which the preservation of the

union will impose on local factions. . . ."); The Federalist No. 10, at 77,

80-81 (James Madison) (Clinton Rossiter ed. 1961) (explaining that by extending

the sphere of the national government, a greater variety of parties and

interests can be taken into account, making it less likely that a majority will

have a common motive to invade the rights of other citizens); Joseph Story,

Commentaries on the Constitution of the United States 1790, at 548 (4th ed.

1873) ("Indeed, in a free government almost all other rights would become

utterly worthless if the government possessed an uncontrollable power over the

private fortune of every citizen."); see also Chemerinsky, supra note 12, at 513

("The primary concern in creating a national government was that it would be

unconstrained by common-law principles and could infringe liberties in ways that

private entities could not."); Summers, supra note 12, at 692 ("For the Founding

Fathers, the greatest threat to personal freedom was the state with its capacity

to control individuals."); Ronald J. Krotoszynski, Jr., Note, Autonomy,

Community, and Traditions of Liberty: The Contrast of British and American

Privacy Law, 1990 Duke L.J. 1398, 1433 ("The broad language of the Constitution

ostensibly protects individual liberty from government encroachment.").

n19 See Chemerinsky, supra note 12, at 504 (suggesting that definition of state

action determines federal government's ability to protect from private

interference). For other support of individual liberty over government control,

see generally John Locke, Two Treatises of Government 366-69 (Peter Laslett ed.,

Cambridge Univ. Press 1965) (1690); John Stuart Mill, On Liberty (Penguin Books

1982) (1859) (stating that neither community nor state has any business telling

a person how to make private decisions unless person's actions harm others of

community at large).

n20 See Roberto Mangabeira Unger, Law in Modern Society: Toward a Criticism of

Social Theory 201-02 (1976) ("[T]he increasing recognition of the power these

[corporate] organizations exercise, in a quasi-public manner . . . makes it even

harder to maintain the distinction between state action and private conduct.");

Adolf A. Berle, Jr., Constitutional Limitations on Corporate Activity-Protection

of Personal Rights from Invasion Through Economic Power, 100 U. Pa. L. Rev. 933,

942-53 (1952) (stating that corporate power can inflict injuries to rights as

severely as government power, and this should be remedied through application of

Constitution); Owen M. Fiss, Silence on the Street Corner, 26 Suffolk U. L. Rev.

1 (1992) (discussing Court's failure to account for lack of media access for man

on street versus major corporations). For discussion of the doctrine of state

action as a public/private distinction, see generally Brest, supra note 13;

Henry J. Friendly, The Public- Private Penumbra-Fourteen Years Later, 130 U. Pa.

L. Rev. 1289 (1982); and Frank I. Goodman, Professor Brest on State Action and

Liberal Theory, and a Postscript to Professor Stone, 130 U. Pa. L. Rev. 1331

(1982).

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This Article advocates the elimination of what has become an anachronistic

inequality in the treatment of workplace privacy. Employee privacy rights can be

violated just as easily and to the same degree by a private employer as by the

government. n21 [*831] Maintaining the public/private distinction in this

context simply does not make sense. By permitting private-sector employers

unfettered freedom to monitor their employees, the public/private distinction

threatens commonly accepted notions of privacy and degrades liberty and autonomy

interests.

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n21 See David L. Bazelon, Civil Liberties-Protecting Old Values in the New

Century, 51 N.Y.U. L. Rev. 505, 512-13 (1976) (asserting that increased power of

private groups can "invade liberty on a massive scale"); Ira Nerken, A New Deal

for the Protection of Fourteenth Amendment Rights: Challenging the Doctrinal

Basis of the Civil Rights Cases and State Action Theory, 12 Harv. C.R.-C.L. L.

Rev. 297, 353 (1977) (arguing that private infringements of rights have "effects

no less devastating than those resulting from direct action by the state");

Robert S. Peck, Extending the Constitutional Right to Privacy in the New

Technological Age, 12 Hofstra L. Rev. 893, 893 (1984) (stating that current

change of American society into information-based society will require new

constitutional machinations in much the same way that industrial revolution

did). See generally John Shattuck, In the Shadow of 1984: National

Identification Systems, Computer Matching, and Privacy in the United States, 35

Hastings L.J. 991 (1984) (describing privacy implications of current

technological developments in both public and private sectors).

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Of course, disregarding the public/private distinction in any context is no

small matter, and is likely to result in many undesirable consequences. While

conceding that no easy solution exists, this Article argues that employee

privacy rights would best be obtained by the enactment of a comprehensive

federal statute protecting all employees' rights to privacy. While acknowledging

the validity of the employer's interest in maintaining an efficient and

productive workplace, this Article maintains that a statute which fosters a

relatively uniform and consistent interpretation of privacy rights in the

workplace would in the long run be in the best interest of both employers and

employees.

In Part I, the Article stresses the importance of privacy to American society

and outlines the growing threat to employee privacy. Part II explains how

current legal protections have proven inadequate against this surveillance

onslaught. It then evaluates several proposals for restoring employee privacy

rights including constitutionalizing the workplace, revising or expanding

current federal statutes, and developing new exceptions to the

employment-at-will doctrine, but concludes that there is no readily identifiable

current solution. Part III of the Article reexamines the public/private

dichotomy and concludes that the rationale underlying the dichotomy is less

relevant in the context of workplace privacy. Part IV examines the history of

equal protection in the workplace, another context in which the public/private

dichotomy initially undermined private-sector employment rights and for which

the [*832] ultimate solution was Title VII of the Civil Rights Act. Although

recognizing that privacy interests are unavoidably (and justifiably) compromised

to some degree in the employment relationship, the Article concludes that the

current lack of privacy in the private-sectorworkplace merits the enactment of a

comprehensive federal statute. A new statute would provide workers with at least

a minimum level of workplace privacy, much as Title VII represented the most

efficient and comprehensive means of addressing employment discrimination in the

private sector.

I. The Importance of Privacy Rights in the Workplace and the Surveillance

Revolution

Although deemed by many to be inherent in the concept of individual freedom,

privacy eludes precise definition. n22 Numerous courts and commentators have

nevertheless attempted to delineate the concept of privacy. n23 Warren and

Brandeis emphasized that [*833] the right to privacy is a "spiritual" value,

n24 which includes the "right to be left alone," n25 and which values "the

individual's independence, dignity, and integrity." n26 Another commentator has

stated that privacy includes "an autonomy or control over the intimacies of

personal identity." n27 It is likely that no single theory of privacy can

capture all the nuances of the concept. n28

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n22 See Raymond Wacks, The Protection of Privacy 10-12 (1980) ("The long search

for a definition of 'privacy' . . . is often sterile and, ultimately, futile.");

Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideas in the

Constitution?, 58 Notre Dame L. Rev. 445, 467, 483 (1983) (stating that

definitions of privacy vary from case to case); Gormley, supra note 5, at 1397

(arguing that simple definition of privacy is "misguided quest"). For more

thorough discussion of these definitional and theoretical approaches, see James

R. Beattie, Jr., Privacy in the First Amendment: Private Facts and the Zone of

Deliberation, 44 Vand. L. Rev. 899, 910-21 (1991).

n23 See, e.g., Wacks, supra note 22, at 10-12 (discussing various formulations

of privacy); Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An

Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1000-01 (1964) (arguing that

privacy represents but one interest, freedom from intrusion of public scrutiny);

Charles Fried, Privacy, 77 Yale L.J. 475, 483 (1968) (arguing that despite

significant differentiating features, "privacy . . . is control over knowledge

about oneself"); Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421,

428, 433-34 (1980) (contending that "privacy is a limitation of others' access

to an individual" and that the independent elements of secrecy, anonymity, and

solitude are all part of same notion of accessibility); Hyman Gross, Privacy and

Autonomy, in Privacy 169, 172 (J. Roland Pennock & John W. Chapman eds., 1971)

(defining privacy as two classes of personal matters: "things which tell us who

a person is and what he likes" and matters pertaining to a person's life);

Richard A. Wasserstrom, Privacy: Some Arguments and Assumptions, in

Philosophical Dimensions of Privacy: An Anthology 317, 322-23 (Ferdinand David

Schoeman ed., 1984) (stating that one central theme of privacy involves "the

kind and degree of control that a person ought to be able to exercise in respect

to knowledge or the disclosure of information about himself or herself"). These

views tend to focus on the overarching theoretical role of autonomy that privacy

affords individuals as they seek to co- exist with society. See, e.g.,

Bloustein, supra, at 1002-03 (discussing intrusion on privacy as threat to

liberty); Thomas I. Emerson, The Right of Privacy and Freedom of the Press, 14

Harv. C.R.-C.L. L. Rev. 329, 337 (1979) (arguing that "privacy" changes as

society changes); Gavison, supra, at 428-36 (laying out structure of privacy);

Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. Rev. 34, 35-36 (1967)

(contending that development of legally protected privacy interest requires

recognition of particular condition of human life).

n24 Warren & Brandeis, supra note 6, at 197.

n25 Id. at 195.

n26 See id. at 197 (arguing that in cases of intrusion into privacy, core of

invasion is "blow to human dignity, an assault on human personality").

n27 John Gerety, Redefining Privacy, 12 Harv. C.R.-C.L. L. Rev. 233, 236 (1977);

see also Gavison, supra note 23, at 423 (limiting privacy "to our concern over

our accessibility to others").

n28 See generally Emerson, supra note 23, at 340 ("If the evolution of a privacy

right is to be successful, however, we must keep in mind that it is a theory of

privacy that we are searching for."); Symposium, The Right to Privacy One

Hundred Years Later, 41 Case W. Res. L. Rev. 643 (1991) (examining developments

of privacy rights over past century).

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Thankfully, formulating a comprehensive definition of privacy is unnecessary for

the purposes of this Article. However, since some definition is necessary to

inform a discussion of workplace privacy: "privacy" means freedom from

unwarranted and unreasonable intrusions into activities that society recognizes

as belonging to the realm of individual autonomy. n29

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n29 Alan F. Westin, Privacy & Freedom 7 (1967) ("Privacy is the claim of

individuals, groups, or institutions to determine for themselves when, how, and

to what extent information about them is communicated to others."). Defining the

amorphous concept of privacy is problematic, but Westin's definition is

functionally adequate for present purposes, not least because privacy, as a

fundamental value, is no easier to define than freedom or liberty. See

Philosophical Dimensions of Privacy: An Anthology, supra note 23 (containing

various essays on the meaning of privacy); Jed Rubenfeld, The Right of Privacy,

102 Harv. L. Rev. 737, 805 (1989) (noting that "[t]he right of privacy exists

because democracy must impose limits on the extent of control and direction that

the state exercises over the day- to-day conduct of individual lives").

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Privacy has long been regarded as a fundamental right. n30 Among the benefits

attributed to privacy are "the promotion of [*834] liberty, autonomy,

selfhood, and human relations, and furthering the existence of a free society."

n31 The right of privacy, however, is more than just a vague concept. This

country's historic respect for privacy has helped creativity and individuality

flourish. n32 The negative effects of a reduction in individual privacy rights

go far beyond simple embarrassment. Loss of privacy often induces conformity to

perceived societal norms to safeguard personal or professional interests.

American culture has been built on its "rugged individualism," diversity, and

the willingness to accept challenges that test American creativity. n33 Yet

these traits that helped build our country will suffer if conformity, not

privacy, is considered the principal value. Perhaps worst of all, inroads into

privacy inhibit personal autonomy and thus individual liberty.

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n30 See Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (stating that right of

privacy is "older than the Bill of Rights-older than our political parties");

Poe v. Ullman, 367 U.S. 497, 521 (1961) (stating that right of privacy is

fundamental personal right emanating "from the totality of the constitutional

scheme under which we live"); Laurence H. Tribe, American Constitutional Law

15-3 (2d ed. 1988) (explaining sources of protected rights of personhood).

n31 Gavison, supra note 23, at 423; see also Anita L. Allen, Uneasy Access:

Privacy for Women in a Free Society 35 (1988) ("Philosophers and legal theorists

maintain that respecting privacy is paramount for human dignity, personhood, and

workable community life.").

n32 See Gormley, supra note 5, at 1434-35 (describing how "the industrialization

and urbanization of America in the late 1800's . . . threatened the ability of

individuals to regulate . . . information concerning themselves, an essential

function if they were to help mold the perceptions society would form of them,

the essence of individuality); Peck, supra note 21, at 899 ("Privacy makes

possible individuality, and thus, freedom."). But cf. Robert H. Bork, Slouching

Towards Gomorrah 57 (1996) (arguing that radical individualism has undermined

Western civilization).

n33 See Gormley, supra note 5, at 1434-38 (noting that fundamental-decision

privacy, such as whether to have abortion and how to raise one's family, has

links to equality).

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In addition to the fundamental interest that individuals have in privacy, they

also have an obvious need to obtain and maintain employment. n34 Although a job

provides the means by which individuals support themselves and families, n35

employment also [*835] provides more than economic benefits. For example,

employment is a key source of self-esteem for many workers. n36 Individuals

often define themselves by their occupations, which becomes a significant aspect

of their personae. n37 Because of the substantial interests individuals have in

both employment and in privacy, invasive monitoring puts employees in a

"catch-22" situation, forcing them to sacrifice reasonable expectations of

privacy because of their need to work.

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n34 See Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 595 P.2d 592, 599

(Cal. 1979) ("An individual's freedom . . . to work and earn a living has long

been recognized as one of the fundamental and most cherished liberties enjoyed

by members of our society . . . ."); Martin N. Flics, Comment, Employee Privacy

Rights: A Proposal, 47 Fordham L. Rev. 155, 155 (1978) (noting that, with

possible exception of marriage, no other relationship entered into by individual

pervades his life so completely).

n35 We have become a nation of employees. We are dependent upon others for our

means of livelihood, and most of our people have become completely dependent on

wages. If they lose their jobs they lose every resource, except for the relief

supplied by the various forms of social security. Such dependence of the mass of

the people upon others for all of their income is something new in the world.

For our generation, the substance of life is in another man's hands. Frank

Tannebaum, A Philosophy of Labor 9 (1951) (footnote omitted), quoted in Lawrence

E. Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive

Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1404 (1967); see also

Kenneth L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82

Cornell L. Rev. 523, 531 (1997) ("Whatever other meanings work may bear, for

most of us, it is a crucial means of sustaining ourselves and our families.").

n36 See Sue Glyptis, Leisure and Unemployment 78-79 (1989) ("Occupation has long

been used as a source of personal and social identity . . . ."); Karst, supra

note 35, at 532 (noting that work shapes individual identities, and that work we

do affects other people's evaluations of us); Note, Finding a Place for the

Jobless in Discrimination Theory, 110 Harv. L. Rev. 1609, 1610 (1997) ("In the

United States, membership in the ranks of the employed is a crucial component of

one's identity.").

n37 See Studs Terkel, Working 102-03 (1974) (noting truth in the comment that

you become your job); Melvin L. Kohn, Unresolved Issues in the Relationship

Between Work and Personality, in The Nature of Work: Sociological Perspectives

36, 53-59 (Kai Erikson & Steven Peter Vallas eds., 1990) (discussing

relationship between feelings about job and self).

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Despite the fundamental role of privacy in the United States, a growing number

of employers are resorting to intrusive monitoring techniques. Commentators have

catalogued countless invasions of employee privacy and abuses of employer

monitoring. n38 Some of [*836] the more egregious violations involve

videotaping changing rooms, n39 timing bathroom breaks, and surveillance of

off-work activities. n40 More common are subtle, incremental, and gradual

privacy violations such as random monitoring of telephone calls, electronic mail

intercepts, and the monitoring of computer usage. n41

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n38 Denny Lee, a spokesman for the ACLU's workplace rights projects, recently

noted in an interview some of the more notorious examples in which companies

have overstepped the bounds of monitoring. Kirstin Downey Grimsley, 35% of Firms

Found to Monitor Workers Electronically, Wash. Post, May 24, 1997, at F1

(providing brief interview with Mr. Lee). Mr. Lee stated, At a high school in

Arizona, . . . school officials installed video cameras in a principal's private

shower to see whether he was engaging in sex acts with a secretary. At a New

York credit union office that had been plagued by vandalism, supervisors

installed fixtures that looked like sprinklers but that really were used to peer

into all parts of the building, including the stalls in the bathroom. In another

case, . . . a worker in Texas was disciplined for complaining about a supervisor

to a co-worker after his private conversation was tape-recorded by the

supervisor. Id.; see also Maggie Jackson, Workplace Surveillance Calls Up

Privacy Issues, Telegraph Herald, May 26, 1995, at B7 (discussing plaintiff's

union grievance that she filed after her office had video camera installed in

her office that filmed 24-hours a day without her knowledge).

n39 See Doe by Doe v. B.P.S. Guard Servs., Inc., 945 F.2d 1422, 1427 (8th Cir.

1991) (finding surreptitious videotaping of private dressing room actionable

even without proof that plaintiffs were actually viewed in state of undress);

Phillips v. Smalley Maintenance Servs., Inc., 435 So. 2d 705, 709 (Ala. 1983)

(finding information about plaintiff's private activities need not actually be

acquired before cause of action for invasion of privacy is established); Harkey

v. Abate, 346 N.W.2d 74, 76 (Mich. Ct. App. 1983) (finding installation of

hidden viewing device in women's restroom constitutes highly offensive

interference with privacy, regardless of whether plaintiffs can prove they were

actually viewed in restroom). In one case, a Maryland hospital showed the tape

of a nurses' locker room on an in-house cable channel. The Electronic Whip, St.

Louis Post-Dispatch, June 28, 1993, at 2B.

n40 See Robert P. Hey, ACLU Says Laws Needed to Ensure U.S. Workers' Privacy On

and Off Job, Christian Sci. Monitor, Dec. 28, 1990, at 4 (reporting capability

of monitoring workers off the job by computers, video cameras, access codes,

pagers, beepers, and substance tests); Gary T. Marx, The Case of the Omniscient

Organization, Harv. Bus. Rev., Mar.-Apr. 1990, at 12 (describing use of new

electronic devices to monitor employees outside of traditional "workplace,"

including monitoring in one's home and car).

n41 See Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983) (holding

employer liable on finding that employer had listened to personal calls as well

as business calls when monitoring its employees); Huffcut v. Remillard, No.

94-CV- 6589T (W.D.N.Y. filed Dec. 7, 1994) (suit filed by employee whose boss

intercepted and recorded his voice mail messages, including those employee

received from his lover); see also Office of Tech. Assessment, supra note 8, at

5 (finding that electronic monitoring raised serious concerns because it "can be

abused and . . . has potential for invasions of employee privacy, as well as

assaults on their autonomy, personal dignity, and health," and expressing

general concern that "new information technology tools . . . might be abused . .

. [and] used simply for the sake of control"); David M. Katz, Electronic

Monitoring and the Odor of Fear, Nat'l Underwriter, Feb. 3, 1992, at 9 (stating

that employees as well as those they have contact with are frequently monitored

without their knowledge).

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Even narrowly focused monitoring, if done without an overriding business concern

and a balancing of interests, can undermine privacy. Driven by the need to

increase worker productivity and minimize liability, employers have adopted

monitoring techniques in an effort to control all aspects of the workplace. The

profits inherent in increased worker productivity and less liability provide

strong incentives for the employer to disregard employee privacy interests.

Employers provide a variety of justifications for maintaining these invasive

practices: to improve employee productivi- [*837] ty, n42 to better evaluate

work performance, n43 to deter or uncover employee wrongdoing or dishonesty, n44

even to limit tort liability under the respondeat superior doctrine. n45

Obviously, employers have a legitimate interest in running an efficient business

and in hiring and retaining honest, productive employees who will perform their

jobs in a safe manner. The question is not whether the employers' interests are

valid (they are), but rather whether any [*838] countervailing values ought to

be balanced against these interests. n46 Employee advocates report that

monitoring, even when disclosed in advance, creates undue stress for employees,

n47 who often feel demeaned by the practice. n48

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n42 See Joan Indiana Rigdon, Curbing Digital Dillydallying on the Job, Wall St.

J., Nov. 25, 1996, at B1 (stating that employers have begun to use new

surveillance software to keep employees focused on their jobs); see also Robert

J. Posch, Jr., Can You Monitor Employee Phone Performance?, Direct Marketing,

Oct. 1993, at 100, 102 ("[R]andom monitoring is essential to ensure that

employees adhere to [the employer's] strict quality-control guidelines

pertaining to customer contact (courtesy, salesmanship, legal guidelines,

etc.).").

n43 See Orthmann, supra note 4, at 77 (noting that 1997 American Management

Association survey found that employer monitoring pertained to employees'

performance of particular tasks, i.e., tracking time spent talking on telephone

or working at computer; taping and reviewing employees' telephone conversations,

voice mail, computer files, or electronic mail; or video surveillance for

security purposes or to assess employee job performance); see also Office of

Tech. Assessment, supra note 8, at 5 (noting that managers find computer

monitoring helps enhance productivity, maintain production standards, and plan

personnel and equipment needs); Industry, Labor Clash Over Proposed Curbs on

Electronic Monitoring, Daily Lab. Rep. (BNA) No. 199, at C-1 (Oct. 15, 1990)

(stating "[e]mployers say that electronic monitoring of employees is a useful

way to evaluate employee performance, increase productivity, and plan for future

business needs"). Employers claim that monitoring provides a more objective

assessment of performance than other forms of employee evaluation; see, e.g.,

Peter T. Kilborn, Workers Using Computers Find a Supervisor Inside, N.Y. Times,

Dec. 23, 1990, 1 at 1 (noting employer representative's claim that "some of the

best workers like being assessed by a system that is free of human bias").

Another reason may be the greater difficulty employers now confront in

terminating employees. With the various civil rights protections and new

exceptions to the employment-at-will doctrine, employers must be prepared to

defend terminations in court. This factor may create incentives for them to

engage in more invasive employee monitoring.

n44 Employers view monitoring as a means to combat employee theft of goods and

time. Ass'n of Certified Fraud Exam'rs, Report to the Nation: Occupational Fraud

and Abuse 5 (1996) (estimating that occupational fraud and abuse cost U.S.

organizations more than 400 billion dollars annually, with the "average

organization losing about 6 percent of its total annual revenue to fraud and

abuse committed by its own employees"); cf. Hebert, supra note 9, at 5

(discussing problem of employee theft and estimating cost to employers at

billions of dollars each year); Flics, supra note 34, at 156-59 (providing

overview of how each stage of employment process entails disclosure of private

facts by employee).

n45 For a thorough discussion of the negligent hiring and retention doctrines,

see J. Hoult Verkerke, Notice Liability in Employment Discrimination Law, 81 Va.

L. Rev. 273 (1995); see also Decker, supra note 9, 3.3 at 108 (noting that

private- sector employers are generally not bound by constitutional privacy

constraints).

n46 Another key question is who does the balancing. Currently, courts allow

employers to do most, if not all this balancing, letting them largely ignore

employee privacy interests. Thomas v. General Elec. Co., 207 F. Supp. 792, 799

(W.D. Ky. 1962) (upholding employer's decision to photograph employees on

worksite as reasonable invasion of employee privacy); Jackson v. Nationwide

Credit, Inc., 426 S.E.2d 630, 632 (Ga. Ct. App. 1992) (upholding employer's

determination that monitoring of employees' calls with speaker phone was not

unreasonable intrusion into employee affairs). Clearly, the remedy is not just

to permit others to become involved in the balancing, such as courts, employees,

and unions, but also to create incentives that shape the employer's balancing

decision.

n47 Several studies have examined the health effects of employer monitoring.

See, e.g., Michael J. Smith et al., University of Wis.-Madison Dep't of Indus.

Eng'g, Electronic Performance Monitoring and Job Stress in Telecommunications

Jobs 1, 5, 20 (1990) (finding that twice as many electronically monitored

workers reported wrist pains and 20% more reported neck pains, as compared with

those who were not monitored, and that monitored employees noted higher

incidents of depression, tension, anger, and extreme anxiety); see also Peter A.

Susser, Electronic Monitoring in the Private Sector: How Closely Should

Employers Supervise Their Workers?, 13 Employee Rel. L.J. 575, 579-90 (1988)

(noting 1984 National Organization of Working Women survey that suggests that

"monitored workers felt substantial pressure to perform and consistently

experienced stress-related health problems"); Julie A. Flanagan, Note,

Restricting Electronic Monitoring in the Private Workplace, 43 Duke L.J. 1256,

1263 (1994) (discussing 1991 National Institute for Occupational Safety and

Health study which found that heavily monitored clerical workers "exhibited a

greater degree of stress, depression, anxiety, instability, fatigue and anger").

n48 See Danann, supra note 3, at 1-2, 4 (reporting that both monitoring and use

of resulting information are not only humiliating, but also stress-creating

events). In 1993, the American Civil Liberties Union reported that it receives

as many as 50,000 employee monitoring complaints per year. Washington Watch:

Someone's Watching, Comm. Week, July 12, 1993, at 29.

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II. The Lack of Protection-Current and Proposed Privacy Laws

A great deal of scholarly energy has been devoted to pointing out the

inadequacies of the existing protections for employee privacy in the private

sector, n49 and it would be unproductive to attempt to catalog all of these

efforts. A brief overview, however, will suffice [*839] to show the

shortcomings of the current system which resurface in many of the proposed

solutions. n50

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n49 See infra notes 89-93, 106, 126, 127 and accompanying text (discussing

scholarly criticism of protections provided under current law); see also Flics,

supra note 34 (noting that until 1970s, scholars paid scant attention to

protection of privacy interests of private-sector employees and that currently

scholars were paying greater attention to this issue).

n50 See infra Part II.b. (discussing current proposed solutions and their

weaknesses).

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A. Current Workplace Privacy Protection

Because only public-sector employees can invoke the Fourth Amendment protection

against unreasonable searches and seizures to challenge employer searches of

employees and property, n51 much of the workplace privacy literature focuses on

the legal solutions available to private-sector employees. Private-sector

employees who wish to contest employer invasions of privacy must rely on a

patchwork of federal and state statutes, common-law tort theories, and the

public policy exception to the employment-at-will doctrine. n52 Under current

law, none provide protection commensurate with the protection available to

government employees. n53

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n51 See O'Connor v. Ortega, 480 U.S. 709, 714 (1987) (stating that strictures of

Fourth Amendment apply to conduct of government officials in various civil

activities); Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (finding Fourth

Amendment was not implicated when private employer searched employee's office

and seized certain papers which were then turned over to Department of Justice

for prosecution of the employee).

n52 Private-sector employees receive some protection against discriminatory

employer searches. For example, Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e to 2000e-17 (1994), prohibits an employer from conducting searches

in such a way as to discriminate on the basis of race, sex, religion, or

national origin. Courts have not, however, interpreted Title VII to protect

employees fired as a result of alleged privacy violations. See Brown v. Pena,

441 F. Supp. 1382, 1384-85 (S.D. Fla. 1977) (rejecting employee's religious

discrimination claim when his employer allegedly fired him for consuming Kozy

Kitten Cat Food on the job; the employee alleged that it contributed

significantly to his well-being and overall work performance), aff'd, 589 F.2d

1113 (5th Cir. 1979).

n53 Because the workplaces of public- and private- sector employees are often

undistinguishable, the use of the limitations on government employers provide

helpful guidance on the appropriate benchmarks for private-sector employer

conduct. See generally Joseph R. Grodin, Constitutional Values in the Private

Sector Workplace, 13 Indus. Rel. L.J. 1, 13-16 (1991) (noting similarity of

private employee situation to that of public employee and arguing that

justifications for public employee protection can also be applied to support

private employee protection); Karl E. Klare, The Public/Private Distinction in

Labor Law, 130 U. Pa. L. Rev. 1358, 1361-1415 (1982) (discussing the

public/private distinction and criticizing it for being devoid of clearly

defined analytical content).

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1. Federal Statutory Protection. The federal legislation most relevant to

employee privacy protection is Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, n54 as amended by the [*840] Electronic Communications

Privacy Act (ECPA) of 1986. n55 The ECPA, with certain exceptions, prohibits any

interception or disclosure of oral, n56 wire, n57 and electronic communications,

n58 or any entry into an electronic system to alter or obtain stored

communications. Unfortunately, as many have noted, the ECPA does not provide

effective protection for employee privacy because of exemptions that effectively

swallow the rule. n59 Although the ECPA does impose some restrictions on the

manner or the extent of employee monitoring, it does not require prior notice to

employees and permits employers in certain circumstances to imply consent to

monitoring. n60 The only limitation that the law imposes [*841] on monitoring

employee communications is that the surveillance be "within the ordinary course

of business." n61 It is difficult to imagine how any monitoring scheme that

enhances productivity or efficiency would not be construed as "within the

ordinary course of business." n62 Finally, what limited protection the ECPA

might have afforded to employees has been greatly weakened because the statute

quickly became outdated. n63 The ECPA does not apply to several modern

monitoring techniques such as electronic mail monitoring and video surveillance.

n64

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n54 Pub. L. No. 90-351, 82 Stat. 197, 211-25 (1968).

n55 18 U.S.C. 2510-2521 (1994). For a thorough discussion of the Act, see Henry

H. Perritt, Law and the Information Superhighway: Privacy, Access, Intellectual

Property, Commerce, Liability 3.7-.13 (1996).

n56 The Act defines "oral communication" as "any oral communication uttered by a

person exhibiting an expectation that such communication is not subject to

interception under circumstances justifying such expectation." 18 U.S.C.

2510(2).

n57 The term "wire communication" includes telephonic communications, on both

public and private telephone lines, which are transmitted by wire. See Briggs v.

American Air Filter Co., 630 F.2d 414, 417 (5th Cir. 1980) ("A telephone

conversation is a wire communication."). In addition, the term includes "any

electronic storage of such communication." 18 U.S.C. 2510(1). The inclusion of

"electronic storage of [wire] communication[s]" within the scope of the term

"wire communications" would appear to cover telephonic recordings and voice

mail. S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555,

3566 (stating intent that stored wire communications such as voice mail be

protected as wire communications).

n58 The term "electronic communication" means "any transfer of signs, signals,

writing, images, sounds, data, or intelligence of any nature transmitted in

whole or in part by a wire, radio, electromagnetic, photoelectric or

photooptical system that affects interstate or foreign commerce," excluding wire

or oral communications. 18 U.S.C. 2510(12). This definition would seem to

include electronic media in which messages generally are typed or otherwise

input into a computer terminal and then transmitted over public or private

telephone lines to the electronic mail service's "mail box," where the message

is stored until the subscriber or receiver calls the service to retrieve the

message, which is then routed over the telephone lines to the recipient's

computer terminal. S. Rep. No. 99-541, at 8, reprinted in 1986 U.S.C.C.A.N. at

3562 (describing electronic mail).

n59 See infra notes 62-64 and accompanying text (discussing ordinary business

exception and lack of application to new technology).

n60 See 18 U.S.C. 2511(2)(d) (allowing interception of electronic communications

where one party to communications has given prior consent, whether express or

implied, to such interception); Watkins v. L.M. Berry & Co., 704 F.2d 577, 581

(11th Cir. 1983) (recognizing that consent may be inferred from surrounding

circumstances indicating that party has agreed to surveillance); Simmons v.

Southwestern Bell Tel. Co., 452 F. Supp. 392, 396 (W.D. Okla. 1978) (concluding

that implied consent existed after finding that defendant company had well-

known monitoring policy and prohibition against using monitored phones for

personal calls), aff'd, 611 F.2d 342 (10th Cir. 1979).

n61 18 U.S.C. 2510(5)(a) (exempting from definition of interceptions those

occurring "in the ordinary course of . . . business").

n62 See Briggs, 630 F.2d at 420 (finding that defendant employer had acted in

ordinary course of business when it monitored employee phone calls made to

competitor who was also friend of employee and former employee of defendant,

because employer had reason to suspect that its employee was discussing

confidential information with former employee); James v. Newspaper Agency Corp.,

591 F.2d 579, 581 (10th Cir. 1979) (upholding routine monitoring of customer

service representatives); T.B. Proprietary Corp. v. Sposato Builders, Inc., No.

CIV.A.94-6745, 1996 WL 290036, at *5 (E.D. Pa. May 31, 1996) (sanctioning use of

speaker phone without identification of all persons listening in on conversation

as within "extension telephone exception" and therefore holding no violation of

Act occurred); Burnett v. State, 789 S.W.2d 376, 378-79 (Tex. Ct. App. 1990)

(holding that monitoring of personal telephone call was justified because "it is

in the ordinary course of business for an employer to take measures to avoid the

theft of its merchandise"); see also Steven B. Winters, Do Not Fold, Spindle or

Mutilate: An Examination of Workplace Privacy in Electronic Mail, 1 S. Cal.

Interdisc. L.J. 85, 118 (1992) (noting that ECPA appears to focus on "third

party" interception because Congress enacted ECPA to address problem of

companies stealing valuable electronic information from competitors).

n63 See Larry Gantt, An Affront to Human Dignity: Electronic Mail Monitoring in

the Private Sector Workplace, 8 Harv. J.L. & Tech. 345, 346-47 (1995)

(discussing how statutes have become obsolete due to technological advances);

Winters, supra note 62, at 118 (noting that courts have yet to apply ECPA

provisions regarding "electronic communications" to specific facts). But see

McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) (holding that ECPA applied to

Navy's review of sailor's e-mail and contact of online service provider (AOL)

for customer profile, and finding that Navy violated ECPA by failing to obtain

warrant for this personal information).

n64 See Note, supra note 7, at 1911 n.112 (stating that ECPA does not cover

interception of business electronic mail by private parties). Additionally, some

types of electronic surveillance or monitoring do not fall within the scope of

the ECPA because they do not involve the monitoring of "communication." For

example, employer use of computer monitoring and videotaping that does not also

record conversations or other communications does not implicate the Act. See

United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991) ("Since the

videotaping did not intercept the contents of any communications, it did not

violate Title III."). In addition, because the Act only regulates the

interception, disclosure, or use of the "contents" of communications, electronic

monitoring that discloses the existence of communications and even basic

information about those communications, such as the parties involved and the

time and duration of those communications, may not be considered to be within

the scope of the Act as not relating to the "substance, purport, or meaning" of

those communications. See 18 U.S.C. 2510(8) (stating that "contents" includes

"any information covering the substance, purport, or meaning of that

communication.").

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[*842]

2. State Statutory Protection. In addition to federal statutes, employees

sometimes also receive some privacy protection from various state

constitutional, n65 common law, n66 and statutory sources. A majority of states

have statutes restricting the interception of wire communications by private

individuals. n67 These statutes, however, generally mirror the ECPA, and like

the ECPA, they fail to protect employees' privacy because they contain broad

exceptions that explicitly sanction employer monitoring that occurs [*843] in

the ordinary course of business. n68

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n65 Much like certain privacy protections in the federal Constitution, discussed

supra notes 14-20 and accompanying text, privacy provisions in state

constitutions often also provide a source of protection for public-sector

employees. See Decker, supra note 9, 3.9 ("Constitutional privacy protections

have traditionally been safeguards against governmental rather than private

institutions."). Like the Fourth Amendment, these state constitutional

provisions restrict the actions of government entities only. The state of

California appears to be the only exception, holding that the right to privacy

in the California Constitution applies with equal force to private- and

public-sector employers. Hill v. National Collegiate Athletic Ass'n, 865 P.2d

633, 641 (Cal. 1994). Thus, in most states, state constitutional privacy clauses

are no more protective of private-sector worker privacy interests than is the

federal Constitution. Kevin J. Conlon, Privacy in the Workplace, 72 Chi.-Kent L.

Rev. 285, 287 (1996).

n66 Four different types of tortious invasions of privacy are recognized by the

Second Restatement of Torts: (1) "unreasonable intrusion upon the seclusion of

another"; (2) "appropriation of the other's name and likeness"; (3)

"unreasonable publicity given to the other's private life"; and (4) "publicity

that unreasonably places the other in a false light before the public."

Restatement (Second) of Torts 652A (1977). For a full discussion of the

development of the invasion of privacy tort, see W. Page Keeton et al., Prosser

and Keeton on the Law of Torts 117, at 851 (5th ed. 1984) and Warren & Brandeis,

supra note 6. Alternatively, an employee might claim that the employer's conduct

constitutes the tort of intentional infliction of emotional distress. For this

cause of action, however, the employer's conduct must be extreme in degree,

outrageous in character, and "atrocious, and utterly intolerable in a civilized

community." Kaminski v. United Parcel Serv., 501 N.Y.S.2d 871, 873 (App. Div.

1986) (citations omitted).

n67 See Robert Ellis Smith, Compilation of State and Federal Privacy Laws 60-63

(1992 & Supp. 1996) (providing list of recent state privacy laws regarding

wiretapping and electronic communications); Conlon, supra note 65, at 289 n.25

(providing list of state wiretapping statutes). South Carolina is the only state

without such legislation. Kenneth A. Jenero & Lynne D. Mapes-Riordan, Electronic

Monitoring of Employees and the Elusive "Right to Privacy," 18 Employee Rel.

L.J. 71, 94 (1992).

n68 See, e.g., Neb. Rev. Stat. 86-702 (1996) (granting employer explicit right

"to intercept, disclose, or use [employee] communication[s] in the normal course

of his, her or its employment while engaged in any activity which is a necessary

incident to the rendition of his, her or its service"). But see Fla. Stat. Ann.

934.01-.43 (West 1996) (requiring consent of all parties to communication before

employer may receive protection of state wiretap act's consent exemption).

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Although some states have shown a willingness to legislate in the employee

privacy area, the efforts have only slowed, not stopped, the assault on

workplace privacy. State governments have not addressed the issue

comprehensively or uniformly, and in many cases they have not addressed it at

all. n69 Some legislation fails to provide a private cause of action and

restitution to affected employees because the laws' primary remedies are penal,

precluding any employee damage claim. n70 Moreover, state courts have strictly

construed the text of state privacy laws, deeming them inapplicable to certain

technologies if they are not specifically referenced within the statute. n71

Even if judicial construction extended statutory coverage to a broader array of

monitoring technologies, the loopholes contained in many of the laws would still

permit relatively aggressive and intrusive monitoring. n72 Thus, from the

employee's perspective, state wiretap or anti-eavesdropping statutes provide

very limited protection against [*844] employer surveillance practices.

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n69 See Smith, supra note 67, at 60-63 (providing overview of state laws that

protect employee privacy).

n70 See id. at 38-39 (listing those states with wiretap laws that do not provide

for compensatory damages). These criminal laws fail to provide an adequate

deterrent to employer monitoring.

n71 Two recent California cases, Flanagan and Shoars, show the difficulty

employees have bringing suit under state wiretapping statutes for an employer's

e-mail monitoring. In both cases the employees claimed a violation of the state

wiretapping statute when they learned that their employer had been monitoring

their electronic mail secretly. Shoars v. Epson Am., Inc., No. SWC112749 (Cal.

Super. Ct. 1990); Flanagan v. Epson Am., Inc., No. BC007036 (Cal. Super. Ct.

Jan. 4, 1991). In the Flanagan case, the California courts held that the

employer's actions did not constitute a violation of California's wiretapping

law, reasoning that the statute did not specifically include "electronic

communications" or "electronic mail" in its coverage. Flanagan, slip op. at 4

(concluding that it may well be that plaintiffs' right of privacy with respect

to the electronic communications ought to be, as matter of public policy,

entitled to protection, but believing that such an extension to Penal Code 631,

if it is to be made, is proper province of legislature).

n72 For instance, Nebraska's general wiretapping statute provides a broad

exception specifically allowing an "employer" to "intercept, disclose, or use"

an electronic communication "in the normal course of . . . employment." Neb.

Rev. Stat. 86-702(2)(a) (1996).

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3. Tort Protections. The tort that most plaintiffs use to challenge employer

monitoring and surveillance is the intrusion on seclusion tort. n73 The classic

conception of this tort is that it is used to punish highly offensive privacy

invasions. n74 Recognized in virtually every state, there has been an attempt to

apply the tort in the employment context as a way of challenging workplace

monitoring abuses by employers. n75 Some commentators have suggested that more

widespread application of the tort is the most effective way to protect workers

from employer invasions of their privacy. n76

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n73 "One who intentionally intrudes, physically or otherwise, upon the solitude

or seclusion of another or his private affairs or concerns, is subject to

liability to the other for invasion of his privacy, if the intrusion would be

highly offensive to a reasonable person." Restatement (Second) of Torts 652B

(1977).

n74 Id.

n75 See Decker, supra note 9, 5.2 (discussing common-law tort remedies available

in employment privacy litigation); Hebert, supra note 9, 8A:22-23 (explaining

use of intentional infliction of emotional distress and invasion of privacy

claim in employment privacy cases involving electronic monitoring and

surveillance).

n76 See, e.g., John D. Blackburn et al., Invasion of Privacy: Refocusing the

Tort in Private Sector Employment, 6 DePaul Bus. L.J. 41 (1993) (arguing for

creation of new privacy tort that could cover workplace invasions of privacy and

disclosure of such information); Frank J. Cavico, Invasion of Privacy in the

Private Employment Sector: Tortious and Ethical Aspects, 30 Hous. L. Rev. 1263

(1993) (arguing that legal and moral pressure should be used to stop workplace

privacy invasions); McClurg, supra note 5 (arguing for legal recognition of

right of "public privacy"); Flics, supra note 34, at 181 (advocating further

legislative protection of employee privacy rights); Jonathan P. Graham, Note,

Privacy, Computers, and the Commercial Dissemination of Personal Information, 65

Tex. L. Rev. 1395 (1987) (arguing for application of privacy tort to commercial

release of private facts). But see Dennis P. Duffy, Intentional Infliction of

Emotional Distress and Employment At Will: The Case Against Tortification of

Labor and Employment Law, 74 B.U. L. Rev. 387 (1994) (arguing that trend toward

"Tortification" of labor and employment law "represents a false promise for

workers in that these remedies do not effectuate real changes in the

workplace"); Matthew W. Finkin, Employee Privacy, American Values, and the Law,

72 Chi.-Kent L. Rev. 221, 221-28 (1996) (concluding that law of intrusion

actually regulates outrage, not privacy, and protects employees only from

emotional distress). For further discussion of this issue, see generally,

Blades, supra note 35; Robert C. Post, The Social Foundations of Privacy:

Community and Self in the Common Law Tort, 77 Cal. L. Rev. 957 (1989).

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Under present law, however, formidable obstacles face the employee who wishes to

bring such a privacy claim against her employer. First, the

intrusion-on-seclusion tort requires the employee to establish that the

monitoring conduct is highly [*845] objectionable to a reasonable person. n77

Because routine monitoring can appear harmless from some perspectives

(especially that of a third party), and because the negative effects of such

monitoring are often gradual and incremental, this standard frequently

forecloses an employee claim based on typical workplace monitoring and

surveillance. In particular, to the extent that the monitoring complained of can

be arguably linked to work-related activities, those challenges have been

unsuccessful. In Barksdale v. IBM, n78 employees brought a claim alleging that

their privacy had been invaded when their performance was monitored while

working on the employer's video display terminals. The court held that the

plaintiffs could not state a claim of invasion of privacy because "[t]he

Defendant's observation and recording of the number of errors the Plaintiffs

made in the tasks they were instructed to perform can hardly be considered an

intrusion upon the Plaintiffs' 'solitude or seclusion . . . or [their] private

affairs or concerns.' " n79 [*846] Additionally, courts have not been

receptive to employee claims that their work environments contain sufficiently

private spaces for an invasion of privacy to occur. n80 For example, an

employee's office, desk, or locker may be held to be the employer's property and

thus, not private. Moreover, some courts require that an employee demonstrate

not only the occurrence of an invasion of privacy, but also that the employer

subsequently disseminated or published the information obtained from that

intrusion. n81 The combination of these requirements typically defeats the

employee's tort claim in all but the most egregious circumstances. n82

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n77 Restatement (Second) of Torts 652B; see also Hoth v. American States Ins.

Co., 735 F. Supp. 290, 293 (N.D. Ill. 1990) (explaining that to state claim for

invasion of privacy under Illinois law, if such claim were recognized in

connection with workplace search, plaintiff would have to establish lack of

authority for employer to search employee's office and anguish resulting from

that search); Valencia v. Duval Corp., 645 P.2d 1262, 1264 (Ariz. Ct. App. 1982)

(requiring that conduct be "extreme and outrageous" to constitute claim for

invasion of privacy); Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973)

(stating that eavesdropping forms basis of tort action only when monitoring is

conducted in manner "to outrage or cause mental suffering, shame or humiliation

to a person of ordinary sensibilities" (citation omitted)).

n78 620 F. Supp. 1380 (W.D.N.C. 1985).

n79 Id. at 1383. Unfortunately the court does not discuss what type of

monitoring (i.e., keystroke monitoring or some other form) the employees had

been subjected to while working at the video display terminals. Although an

employer has an interest in determining the productivity of its employees, key

stroke monitoring is overly invasive because the employer knows whenever an

employee takes a break from typing, not just what the employee's overall

productivity is. For another case along these same lines, see Thomas v. General

Elec. Co., 207 F. Supp. 792, 799 (W.D. Ky. 1962) (holding that use of closed

circuit surveillance devices, ostensibly for purpose of evaluating employee

efficiency, has sufficient business justification to rebut any claims of

unconsented-to intrusion). Likewise, the courts have been reluctant to find an

actionable invasion of privacy when an employer has engaged in monitoring of

employee telephone calls when the employer can claim that this policy is

business-related. See, e.g., Jackson v. Nationwide Credit, Inc., 426 S.E.2d 630,

632 (Ga. Ct. App. 1992) (refusing to find actionable invasion of privacy based

on employer's action of monitoring telephone calls of its employees by use of

speaker phone, when employer had advised employees that its telephones were for

business use only). But see Restuccia v. Burk Tech. Inc., No. 95-2125 (Mass.

App. Ct. 1996) (reversing summary judgment for employer and finding that genuine

issues of material fact existed as to whether the plaintiffs had a reasonable

expectation of privacy in their electronic mail messages).

n80 The law of privacy does not conceive of an employee's physical workspace as

a place of personal seclusion. See, e.g., Ulrich v. K-Mart Corp., 858 F. Supp.

1087, 1095 (D. Kan. 1994) ("A work area of a business, unlike, for example, a

bedroom, is not a place of solitude or seclusion."). But see K-Mart Corp. v.

Trotti, 677 S.W.2d 632, 638 (Tex. Ct. App. 1984) (finding plaintiff

"demonstrated a legitimate expectation to a right of privacy" by placing lock on

workplace locker). Additionally, employees observed or photographed while on a

public street, outside their homes, or in public areas of their workplaces

generally have no claim for invasion of privacy. See, e.g., Fayard v.

Guardsmark, Inc., Civ. A. No. 89-0108, 1989 WL 145958, at *2, (E.D. La. Nov. 29,

1989) (holding that employer's surveillance of employee's house and checking

licenses on cars that stopped there did not constitute unreasonable intrusion on

employee's privacy, since all surveillance occurred from public area); Saldana

v. Kelsey-Hayes Co., 443 N.W.2d 382, 384 (Mich. Ct. App. 1989) (upholding

employer's legitimate interest in investigating employee's worker's compensation

claim and permitting monitoring of employee's home life). For an argument that

the invasion of privacy tort should be expanded to cover invasions that occur in

public, see McClurg, supra note 5, at 1025-44.

n81 Although the Restatement identifies four possible categories of invasion of

privacy, employee monitoring claims would fall only under the category

"intrusion upon seclusion" unless the employer engages in publication of the

information obtained. Restatement (Second) of Torts 652B-E. Some courts,

however, do not view the four categories as distinct causes of action. Rather,

they hold that the plaintiff must demonstrate both publication and intrusion

into seclusion. See, e.g., Harris v. Neff, No. 88-1650, 1991 WL 42294, at *7 (D.

Kan. Mar. 25, 1991) (finding that publication of memorandum discussing

employee's alcohol and drug rehabilitation program did not constitute and

invasion of privacy as it was not highly offensive to a reasonable person). This

Article concerns not only the publication of an employee's private information,

but also an employer's access to or disclosure of any of this personal

information. Public employees receive protection against disclosure of personal

information without the additional publication requirement. Freedom of

Information Reform Act of 1986, 5 U.S.C. 552 (1994); Privacy Act of 1994, 5

U.S.C. 552a (1994). This protection should extend to private-sector employees as

well.

n82 Typically, such situations involve employer monitoring in areas such as

bathrooms and locker rooms. See, e.g., Doe v. B.P.S. Guard Servs., Inc., 945

F.2d 1422, 1427 (8th Cir. 1991) (holding security-guard firm liable for invasion

of privacy occurring when guards videotaped models while they were changing

clothes in dressing area at fashion show); Speer v. Department of Rehabilitation

& Correction, 646 N.E.2d 273, 274 (Ohio Ct. Cl. 1994) (holding that monitoring

of employees in areas within work place generally considered private, such as

restroom, would constitute actionable invasion of privacy); cf. Slack v. Kanawha

County Hous. & Redevelopment Auth., 423 S.E.2d 547 (W. Va. 1992) (reinstating

jury verdict for employee whose former supervisor placed listening device in

ceiling of her office); Ford Motor Co. v. Williams, 132 S.E.2d 206, 210 (Ga. Ct.

App. 1963) (finding common-law invasion of privacy claim stated by individual

whose home was entered by defendant employer).

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[*847]

B. Proposed Solutions for the Workplace Privacy Problem

Though many commentators have bemoaned the lack of workplace privacy protection

for non-government employees, n83 no consensus has emerged as to a solution to

the problem. Recommendations have included relatively minor steps such as

amending current federal privacy protection statutes, n84 to more extreme

measures such as amending the Constitution. n85 Some scholars have suggested new

state laws or tort actions, n86 while others have urged the courts to adopt

revisions to the current employment-at-will doctrine. n87 Some of the more

radical scholarship advocates abandoning the public/private dichotomy

completely, in favor of the adoption of a new test for public/private

determinations that would effectively transform almost all private employment

behavior into state action. n88

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n83 E.g., Grodin, supra note 53, at 5-6; Summers, supra note 12, at 691-93;

David Neil King, Note, Privacy Issues in the Private-Sector Workplace:

Protection from Surveillance and the Emerging "Privacy Gap," 67 S. Cal. L. Rev.

441, 444 (1994). But see Alan F. Westin, Privacy in the Workplace: How Well Does

American Law Reflect American Values?, 72 Chi.-Kent L. Rev. 271, 283 (1992)

(arguing that in area of workplace privacy, America has "solid, workable system

that strikes the right balances between privacy and other social interests").

n84 See infra notes 89-104 and accompanying text.

n85 See infra notes 144-146 and accompanying text.

n86 See infra notes 115-117, 136-137 and accompanying text.

n87 See infra notes 126-130 and accompanying text.

n88 One established line of analysis would find the activities of large

corporations to be state action because of their pervasive influence over the

lives of many citizens. See, e.g., Berle, supra note 20, at 951-53 (arguing that

corporations which have acquired sufficient economic power to discriminate

should be governed by the Fourteenth and Fifteenth Amendments); Cornelius J.

Peck, Unjust Discharges from Employment: A Necessary Change in the Law, 40 Ohio

St. L.J. 1, 4, 21-26 (1979) (arguing that because of heavy regulation of

employers by federal and state law, private employer's discharge of employee is

state action). Although the Supreme Court has never accepted this argument, it

has, on occasion, found state action when a private corporation was performing

government functions. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 88

(1980) (holding that California constitution protects speech and petitioning

reasonably exercised in privately-owned shopping centers); Marsh v. Alabama, 326

U.S. 501 (1946) (finding private corporation performing all necessary municipal

functions in company-owned town to be state actor). This "private state action"

approach has been suggested as a method of applying constitutional privacy law

to the private sector. See, e.g., David H.J. Hermann, III, Privacy, the

Prospective Employee, and Employment Testing: The Need to Restrict Polygraph and

Personality Testing, 47 Wash. L. Rev. 73, 140-42, 148-49 (1971) (noting problem

of overcoming "state action" hurdle in order to obtain constitutional protection

for private employees).

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[*848]

1. Federal Employee Privacy Solutions. Recent literature in the area of non-

governmental employee privacy protection has focused on, or advocated, greater

federal regulation of the new technologies that employers use to monitor the

workplace. n89 Many of these scholars believe that the decline in employee

privacy can be arrested by regulating the technological advances that facilitate

the monitoring of employees.

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n89 E.g., Susan Ellen Bindler, Peek and Spy: A Proposal for Federal Regulation

of Electronic Monitoring in the Workplace, 70 Wash. U. L.Q. 853, 885 (1992)

("Congress should pass legislation granting employees specific rights in the

workplace."); Boehmer, supra note 2, at 817 (arguing that ECPA should be amended

to encompass new technologies); Conlon, supra note 65, at 287-88 (suggesting

that existing federal regulations do little to protect the employee); Gantt,

supra note 63, at 350 (concluding that "further federal legislation must be

enacted in order to protect employees from abusive employer E-mail monitoring

practices"); Thomas R. Greenberg, E-Mail and Voice Mail: Employee Privacy and

the Federal Wiretap Statute, 44 Am. U. L. Rev. 219, 251 (1994) (arguing for

amendments to ECPA that would provide that employers must show business interest

for monitoring and would treat all technologies equally); Laurie Thomas Lee,

Watch Your E-mail! Employee E-Mail Monitoring and Privacy Law in the Age of the

"Electronic Sweatshop," 28 J. Marshall L. Rev. 139, 157 (1994) (noting that

monitoring of employee e-mail messages is permitted under current federal law,

and thus, revisions must be made); Donald R. McCartney, Comment, Electronic

Surveillance and the Resulting Loss of Privacy in the Workplace, 62 UMKC L. Rev.

859, 890 (1994) (arguing for legislation "that provides a generalized protection

for the right to privacy and specifically regulates the kind of intrusions

caused by the burgeoning array of electronic devices:); Note, supra note 7, at

1908-09 n.112 (arguing for new, expanded wiretap law because current federal law

has failed to adapt to modern technology).

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Most of these commentators have suggested amendments to current federal statutes

to enable broader coverage of employee privacy rights. n90 Much of the

literature revolves around expansion of the ECPA. To strengthen the ECPA's

monitoring prohibitions, some recommend amending the ECPA to explicitly cover

not only telephone monitoring, but also the monitoring of employee electronic

communications and surveillance. n91 These commentators argue [*849] that to

the extent that protection currently available under the ECPA varies as a result

of the type of monitoring, i.e., electronic or non-electronic, the protection is

arbitrary and inconsistent. n92 This suggestion does not cure the fundamental

problem with the ECPA-that it fails to balance employees' reasonable

expectations of privacy in the workplace with the employer's economic interests.

By focusing exclusively on the types of monitoring and the technologies

involved, these proposals assume that other workplace monitoring is per se

reasonable and legitimate, without first examining whether it infringes on the

employee's privacy interest. The ECPA abandons any balancing test of interests

and concedes noncovered or unregulated fields to the employer.

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n90 See supra note 89.

n91 Gantt, supra note 63, at 351-55; see also Boehmer, supra note 2, at 817

(arguing that ECPA should be made expressly applicable to electronic mail); Ruel

Torres Hernandez, ECPA and Online Computer Privacy, 41 Fed. Comm. L.J. 17, 17-18

(1988) (discussing confusion that arises because under the Act's current

provisions some private internal networks are regulated while others are not due

solely to different technologies involved, and thus, the statute needs to be

amended).

n92 E.g., Gantt, supra note 63, at 409 (observing that employers are still

allowed to monitor e-mail messages of certain employees).

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Other scholarship argues that the ECPA should be abandoned as a source of

employee privacy protection, and new legislation should be enacted to protect

employees. n93 Some scholars have applauded Congress's recent attempt to enact

privacy legislation through the failed Privacy for Consumers and Workers Act

(PCWA). n94 Applying to both the public and private sector, n95 Congress

designed the PCWA to prevent abuses of workplace supervision through electronic

surveillance and monitoring. n96 The PCWA would [*850] require an employer to

provide notice to its employees and prospective employees that the employer

engages in workplace monitoring. n97 Under the House version, this notice would

have to include the days and hours when the monitoring would occur and the uses

made of the data collected. n98 Notwithstanding these notice provisions, an

employer could monitor any employee at the worksite without notice if the

employer "has a reasonable suspicion" that the employee's action violates

"criminal or civil law, or constitutes willful gross misconduct." n99 In

addition, the PCWA would limit access to employee-maintained data n100 and would

afford an employee the opportunity to review her records. n101

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n93 See, e.g., Shefali N. Baxi & Alisa A. Nickel, Big Brother or Better

Business: Striking a Balance in the Workplace, 4 Kan. J.L. & Pub. Pol'y 137, 144

(1994) (arguing for increased regulation); Gantt, supra note 63, at 416

(advocating adoption of statute requiring that employer demonstrate compelling

business interest before engaging in employee monitoring); Flanagan, supra note

47, at 1258 (concluding "that employer policies modeled under the Act's

guidelines would create a work atmosphere advantageous to both employers and

employees"); King, supra note 83, at 457 (arguing for statute that focuses on

"fairness" of employer monitoring); McCartney, supra note 89, at 891 (arguing

for privacy protection legislation and creation of "independent Data Protection

Board" that would help identify and regulate privacy concerns).

n94 H.R. 1900, 103d Cong. (1993); S. 984, 103d Cong. (1993). The employee

privacy bills were initially introduced during the 1989-1990 term, but hearings

were not held. Similar bills were introduced during the following congressional

terms. No further activity on the proposed Act has been reported since that

time.

n95 H.R. 1900 2(3) (stating that Act regulates any individual or business entity

employing any number of workers); S. 984 4(A) (same).

n96 H.R. 1900, Preamble, 2(4). Other than providing for specific privacy

protections, the proposed Act would have applied to continuous electronic

monitoring and provided that employees shall be notified of the monitoring. Id.

3-10. Additionally, the Act would have regulated periodic or random monitoring

and provided for a review and amendment of surveillance records. Id. The House

version of the proposed Act defines "electronic monitoring" to include all data

collection by any technological device, excluding only wiretapping and

electronic transfer of payroll, insurance, or related information. Id. 2(1). For

a further discussion about the PCWA, see Perritt, supra note 55, 3.5.

n97 H.R. 1900 4; S. 984 5(B).

n98 H.R. 1900 4(b)(3)-(4).

n99 Id. 5(c)(1)(a); S. 984 5(c)(1)(A).

n100 H.R. 1900 9(d); S. 984 9.

n101 H.R. 1900 7; S. 984 7.

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Although some commentators have expressed dissatisfaction with the PCWA n102 or

have suggested minor changes, n103 many have agreed that legislation represents

the most promising avenue of reform to protect workplace privacy. n104 Versions

of the PCWA [*851] were introduced in both the House and Senate, but neither

chamber passed its respective version of the bill. n105

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n102 See, e.g., Boehmer, supra note 2, at 817 (noting that it is unclear whether

proposed versions of PCWA address interceptions of electronic communication that

are also protected under the ECPA).

n103 See Bindler, supra note 89 (noting that PCWA does not regulate fairness of

monitoring and fails to recognize that not all monitoring that complies with

statute is necessarily fair); Boehmer supra note 2, at 815-16 (arguing that

PCWA's definition of surveillance techniques does not limit its scope to

storage, analysis, and reporting of information originally collected by

surveillance); Note, supra note 7, at 1912 (advocating separate statute based on

proposed PCWA for electronic mail).

n104 See Janice R. Bellace, A Right of Fair Dismissal: Enforcing a Statutory

Guarantee, 16 U. Mich. J.L. Reform 207 (1983) (advocating legislation in

employee dismissal context); Hermann, supra note 88, at 154 ("[T]he most likely

route to successful recognition of employees' right of privacy is federal

legislation."); Jack Steiber & Michael Murray, Protection Against Unjust

Discharge: The Need for a Federal Statute, 16 U. Mich. J.L. Reform 319 (1983)

(urging federal legislation to protect American workers from unjust discharge);

Clyde Summers, The Contract of Employment and the Rights of Individual

Employees: Fair Representation and Employment at Will, 52 Fordham L. Rev. 1082,

1109 (1984) (arguing that only adequate solution for unjust dismissals is

statutory protection). See generally 2 Henry H. Perritt, Jr., Employee Dismissal

Law and Practice 11.1- .41 (4th ed. 1998) (providing comprehensive discussion of

legislative proposals to protect employees).

n105 At the end of the 103d Congress, House Bill 1900 had stalled in the House

Education and Labor Committee, and Senate Bill 984 had stalled in the Senate

Subcommittee on Employment and Productivity.

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Even if it had passed, however, the PCWA would not be sufficient. By focusing

almost exclusively on providing employees with notice of employer monitoring,

the proposed PCWA fails to delineate what types of monitoring may be

inappropriate even with adequate notice. n106 In addition, the PCWA (like the

ECPA) does not consider the employee's reasonable expectation of privacy when

determining if surveillance is acceptable. Although the proposed PCWA would have

eliminated surreptitious employer monitoring, it would not have restricted the

amount or scope of the disclosed monitoring. n107 The lack of a balancing test

is again the key. n108

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n106 See Gantt, supra note 63, at 409-10 ("[S]imply notifying employees of

potential monitoring does not alleviate the privacy burdens . . . ."); King,

supra note 83, at 472 ("[PCWA would still leave employees] subject to offensive

non- electronic monitoring and fail[] to protect the employee against egregious

privacy violations that meet the notice requirements of the Act."). Notice to

employees would act as somewhat of a deterrent to abuse by employers. Employees,

however, still have expectations of privacy and personal autonomy that cannot be

overridden by employer notice that invasive monitoring practices will occur.

n107 Under the proposed Act, employers are obliged to notify employees of

monitoring practices, but they still remain free to monitor the content of

work-related employee communications of certain employees. Gantt, supra note 63,

at 409. Both the House and Senate versions state that "no employer may

intentionally collect personal data about an employee through electronic

monitoring if the data are not confined to the employee's work." H.R. 1900, 103d

Cong. 9(a)(1) (1993); S. 984, 103d Cong. 10(a) (1993).

n108 Any balancing that new legislation does require will have to be carefully

structured. The solution to employee privacy is not to have the courts

micromanaging the workplace because they are required to balance all employee

claims.

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Although a comprehensive federal statute may provide the answer to employee

privacy concerns, neither the ECPA nor the PCWA provide the appropriate

solution. Both the ECPA and the PCWA focus on specific methods or procedures for

monitoring and not on employees' affirmative rights to privacy and personal

autonomy. n109 Their approach highlights three problems that [*852] must be

addressed within effective federal legislation. First, to be effective, any

federal statutory scheme must be adaptable to changes in technology. n110 Any

legislation which defines protection in terms of specific types of monitoring

equipment will inevitably be rendered obsolete by newer employee-monitoring

technology falling outside the scope of the legislation. Device-specific privacy

protection legislation enacted by Congress in the past has had only a limited

effect in protecting the privacy rights of private-sector employees. n111 In

fact, history teaches that if "device-specific" legislation is enacted,

employers will simply shy away from regulated devices and turn to other devices

that may present even greater concerns. n112

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n109 For example, the ECPA defines "electronic monitoring" in terms of the

specific equipment covered by the Act. 18 U.S.C. 2510(12) (1994) (including

within Act's regulations information transferred by "wire, radio,

electromagnetic, photoelectric or photooptical system[s]," but excluding

cordless telephones, tone-only paging devices, and tracking devices). The

proposed PCWA also refers to specific types of devices. H.R. 1900 2(2)(C)

(excluding certain wiretapping devices as well as electronic transfer to payroll

and other payroll-related information from definition of "electronic

monitoring").

n110 See Russell S. Burnside, The Electronic Communications Privacy Act of 1986:

The Challenge of Applying Ambiguous Statutory Language to Intricate

Telecommunication Technologies, 13 Rutgers Computer & Tech. L.J. 451, 455

(1987). Burnside notes that the 1968 Title III Wiretap Act, 47 U.S.C. 605

(1997), became antiquated within 10 years of its enactment and that

"technological advances occur so rapidly that the laws do not always keep pace

to ensure adequate privacy safeguards." Id. Certain recent examples illustrate

the dangers of tying fundamental rights to current technologies. Compare Roe v.

Wade, 410 U.S. 113 (1973) (holding that women have virtually unrestricted right

to abortion before fetal viability), with Planned Parenthood v. Casey, 505 U.S.

833, 837 (1992) (noting that advances in maternal health care and neonatal care

have affected factual assumption (i.e., timing of viability) that underlies

Roe).

n111 See, e.g., Fair Credit Reporting Act, 15 U.S.C. 1681-1681t (1994)

(permitting use of consumer credit reports in making employment decisions, but

imposing certain requirements relating to disclosure and accuracy of

information); Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001-2009

(1994) (prohibiting polygraph testing by private employers except in certain

statutorily defined circumstances); Americans with Disabilities Act of 1990, 42

U.S.C. 12101-12213 (1994) (regulating employer-mandated medical inquiries and

examinations). For discussion of some of these statutory provisions, see Flics,

supra note 34.

n112 The experience with polygraph examinations provides a lesson in this area.

The Employee Polygraph Protection Act of 1988, 29 U.S.C. 2001-2009, a

comprehensive, device-specific statute, has substantially curtailed polygraph

use by private employers, but it has driven employers to an arguably less

reliable testing device, the "paper and pencil honesty test." See Katrin U.

Byford, The Quest for the Honest Worker: A Proposal for Regulation of Integrity

Testing, 49 SMU L. Rev. 329, 364-65 (1996) (discussing various ethical, social,

and reliability concerns surrounding honesty testing and need for greater

regulation in this area); Kurt H. Decker, Honesty Tests-A New Form of

Polygraph?, 4 Hofstra Lab. L.J. 141, 149 (1986) (arguing that honesty tests

should be treated like polygraphs because honesty test aims to evaluate same

subject).

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Second, any federal statutory solution must not be drafted in terms of specific

prohibitions on the employer. Such legislation [*853] fails because it merely

encourages evasive action by employers. n113 By attempting to regulate precisely

when and how an employer may monitor its employees, such legislation merely

causes employers to adopt new techniques in order to devise loopholes or avoid

monitoring restrictions. n114

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n113 As an example of the proposed PCWA's inflexibility, the Senate version

completely bans random and periodic monitoring of employees with more than five

years of service. S. 984, 103d Cong. 5(B)(3) (1993). In contrast, the House

version limits the employer to 15 service observations on employees with more

than two years of service. H.R. 1900, 103d Cong. 5(a) & (b)(1)-(3) (1993). In

addition, both the House and Senate versions contain regulations governing the

specific levels of monitoring that depend on an employee's length of service.

H.R. 1900 5(a); S. 984 5(b).

n114 Bindler, supra note 89, at 876; Gantt, supra note 63, at 419. The proposed

PCWA's length of service exceptions appear arbitrary from both the employer and

employee standpoint. Privacy rights in the workplace should not depend on years

of service.

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Finally, the law must take into consideration the employees' reasonable

expectations of privacy. As noted above, respecting employees' privacy rights

requires a balancing of their reasonable expectations of privacy against the

employer's business interest in conducting the monitoring at issue. Merely

providing notice to employees does not adequately protect their privacy

interests. For example, an employer may notify an employee that it will monitor

employee restrooms. Knowing that the restrooms are monitored does not decrease

the employee's privacy interest when he uses the bathroom.

2. State Law Employee Privacy Protections

a. Tort Law. Supporters of an expanded privacy tort argue that a new common- law

cause of action that would apply to all workplace privacy invasions would

provide the greatest protection to employees. n115 They maintain that courts can

fashion new common-law remedies to meet the needs created by changing societal

conditions-in this case, technological and economic conditions that have spurred

employers to monitor their employees [*854] more closely. n116 Because the

current legislative inaction stems partially from antiquated definitions of

privacy in this high-tech age, proponents argue that a new tort claim would best

provide immediate help to workers. The dynamic nature and flexibility of tort

law, it is argued, make it the most appropriate response to the dangers of the

new technology to employee privacy. n117 They believe that the tort-law approach

of adjudicating claims on a case-by-case basis, and by examining the

circumstances and balancing the equities of each case, provides the best

mechanism for vindicating privacy rights.

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n115 See Blackburn et al., supra note 76, at 58 (arguing that courts should

focus on employee's right to control information as basis for all invasion of

privacy torts); McClurg, supra note 5, at 1055 (arguing for expanded definition

of privacy to include aspects which have no relation to "physical solitude");

Peck, supra note 21, at 912 (stating that "courts must assume a leading role in

addressing newly emerging issues in order to reach a rational accommodation

between the benefits of technological progress and the attendant threats to

individual freedom" and asserting that "statutory solutions cannot meet the

rapid need for change").

n116 Legislatures may be slow to address the impact on privacy of rapidly

changing technology. See, e.g., Richard D. Marks, Security, Privacy, and Free

Expression in the New World of Broadband Networks, 32 Hous. L. Rev. 501, 515

(1995) ("The rapid evolution of digital technology passed beyond the limits of

existing legislation long ago, and the present legislative scheme, by and large,

is inadequate to protect the privacy of business and personal communications.").

n117 See McClurg, supra note 5, at 1056 (noting that fixed rules do not work

well when dealing with human nature). For example, courts have adapted tort

remedies to cover non- physical intrusions; courts generally consider

non-physical invasions of privacy, such as electronic surveillance or

monitoring, an "intrusion." Restatement (Second) of Torts 652B cmt. b (1977);

see also Comeaux v. Brown & Williamson Tobacco Co., 915 F.2d 1264, 1275 (9th

Cir. 1990) (reasoning that invasion of privacy is available to redress harm

caused by "the use of outrageous investigative methods"); Pemberton v. Bethlehem

Steel Corp., 502 A.2d 1101, 1117 (Md. Ct. Spec. App. 1986) (electronic listening

device); Harkey v. Abate, 346 N.W.2d 74 (Mich. Ct. App. 1983) (installing

cameras in public restroom is actionable interference with privacy); Keeton et

al., supra note 66, 117 (noting that abnormal means for gaining access to

information, such as wiretapping, would be actionable as invasion of privacy

regardless of purpose).

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However compelling the argument for judicial extension of the law of privacy may

sound, it is unlikely to create an adequate solution to the problems of employer

monitoring. n118 An expansion of current privacy doctrine to protect workers

would involve considerable judicial activism. n119 Courts do not appear to be

willing to take such steps. Additionally, damages an employee may suffer from

privacy invasions will likely be difficult to prove as they [*855] will often

involve emotional distress rather than physical injury. n120 As a result, any

deterrent effect that employee lawsuits may have had will be muted.

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n118 See Finkin, supra note 76, at 267-68 (noting that "tort is an

extraordinarily unwieldy means of dealing with many of these issues,

particularly with computerized work monitoring"); Graham, supra note 76, at 1434

(noting that because common-law remedies grew out of actions of worst employers,

remedies and sanctions have developed in response to behavior of

unrepresentative sample of employers; thus, remedies are often overly generous,

prompting otherwise marginal claims to be brought).

n119 See supra notes 77-82 and accompanying text (discussing barriers to

workplace invasion of privacy claims in today's courts); see also Flics, supra

note 34, at 181 (noting that attempts to create judicial solution require

extensive reinterpretation of law).

n120 Many states have enacted various tort reform statutes placing caps on

compensatory and punitive damages. See generally Heidi Li Feldman, Harm and

Money: Against the Insurance Theory of Tort Compensation, 75 Tex. L. Rev. 1567

(1997) (discussing such recent statutes). Most often, states have enacted

statutes that limit pain and suffering damages, the damages which a plaintiff in

a wrongful discharge or privacy invasion case will most likely seek. See, e.g.,

Alaska Stat. 09.17.010(b) (Michie 1996) ($ 500,000 limit on noneconomic

damages); Cal. Civ. Code 3333.2(b) (West Supp. 1997) ($ 250,000 limit on

noneconomic limit on total damages); O.C.G.A. 51-12-6 (Supp. 1997) (no punitive

damages in claims solely for emotional distress); Ind. Code Ann. 27-12-14-3

(Michie 1994) ($ 750,000 limit on total damages); Mont. Code Ann. 39- 2-905(3)

(1997) (no pain and suffering in wrongful discharge cases).

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Such judicial activism would also be piecemeal by nature and would not provide

uniform protection of workplace privacy rights. Employees who suffer similar

intrusions will often receive differing protection of their privacy rights.

Examples of this problem can be seen even under the current scheme. n121 Thus,

although tort law is praised for its adaptability, this flexibility renders it

inherently unstable. Any gains workers make in notable cases can be erased by

subsequent judicial interpretation, leaving employees with a false sense of

security about available legal remedies. n122

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n121 For instance, in McLain v. Boise Cascade Corp., 533 P.2d 243 (Or. 1975),

the employer disputed the employee's claim of a work-related back injury. To

prove that the injury was not as substantial as the employee claimed, the

employer hired an investigator to take photographs of the employee conducting

everyday activities. Despite the fact that the investigator trespassed on the

employee's property to obtain the photographs, the Oregon court held that the

intrusion was not highly offensive. Id. at 346-47. On the other hand, in

Pemberton, 502 A.2d at 1101, a Maryland court held that an employer's

surveillance of an employee was highly offensive when it went beyond a public

place. Id. at 1116-17; see also Love v. Southern Bell Tel. & Tel. Co., 263 So.

2d 460 (La. Ct. App. 1972) (holding that employer had committed invasion of

privacy by conducting search of employee's residence).

n122 Duffy, supra note 76, at 421-23; Finkin, supra note 76, at 265.

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Relying on the tort system to provide a remedy for intrusive employer monitoring

will be further handicapped because the surveillance process will frequently

cross state lines. As a result, employees and employers will be uncertain as to

which law governs their workplace rights. For example, suppose an employee's

electronic mail is monitored while flying across country. Which jurisdiction's

privacy law would apply-the employer's principal place of business or the place

where the wrong occurred (a difficult [*856] determination to make when one is

flying)? n123 Such a system would not provide reliability or security to either

employees or employers.

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n123 These issues are driven by conflict of law principles which establish when

a state has the legal authority over a dispute. See, e.g., Yoder v. Honeywell,

104 F.3d 1215, 1219-20 (10th Cir. 1997) (discussing conflicts issues arising

from use of defective computer equipment in suit by employee against employer

and manufacturer of computer); Jordan v. Shaw Indus., Inc., No. 96-2189,

96-2190, 96-2191, 96-2192, 96-2371, 96-2373, 1997 WL 734029, at *2-3 (4th Cir.

Nov. 26, 1997) (noting problems with determining appropriate conflict of laws

theory in case involving the merger of multistate employers and alleged

discrimination and fraud claims by employees). For a general discussion of

choice-of-law theories and their complexities, see Lea Brilmayer, Conflict of

Laws: Foundation and Future Directions 161, 188 (1991) (explaining and

critiquing conflict of law theories and advancing new Restatement of Conflict of

Laws or adoption of uniform state law); Michael E. Solimine, An Economic and

Empirical Analysis of Choice of Law, 24 Ga. L. Rev. 49 (1989) (evaluating

traditional choice of law approach and suggesting national uniform choice of law

rule is best approach).

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An even more fundamental concern stems from the global nature of the modern

labor force. If the labor law environment of a particular state is perceived by

an employer to be overly protective of employees, an employer may simply

transfer particular jobs (or its entire operation) to another state or country.

n124 Indeed, some courts, particularly those in declining labor markets, have

recognized an inverse relationship between the robustness of employee legal

protections and employment rates in their states. n125

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n124 See, e.g., Owen Bieber, Good Jobs Are Worth Fighting For, Stan. L. & Pol'y

Rev., Fall 1993, at 61 (discussing movement of assembly plants for General

Motors, Ford, Nike, and Apple to Mexico, Asia, and Europe); see also Editorial,

California's Premium State Taxes Give CEO's-and Their Companies- Reason to

Leave, L.A. Daily News, Aug. 24, 1994, at A14 (discussing movement of

corporation to more employer- and corporate-friendly state); Edmund Sanders, Why

One Company Is Leaving? Over Time, Microaire and California Just Gave Up on Each

Other, L.A. Daily News, Aug. 21, 1994, at B1 (same).

n125 See Cox v. Resilient Flooring Div. of Congoleum Corp., 638 F. Supp. 726,

735 (C.D. Cal. 1986) (finding that wrongful discharge claims "are arising at a

time when whole generations of corporate learning are being rendered irrelevant

by foreign competition and changes in technology and demographics"); Hunio v.

Tishman Constr. Co., 18 Cal. Rptr. 2d 253, 266 (Ct. App. 1993) (upholding jury

award of $ 5.1 million to former vice president of firm unfairly pushed out of

his job, but declaring that "[t]his area of the law is quickly running out of

control and the citizens of California will be the ultimate victims and losers"

because "business enterprises will flee the state"); Kenneth G. Dau-Schmidt,

Meeting the Demands of Workers into the Twenty-first Century: The Future of

Labor and Employment Law, 68 Ind. L.J. 685, 702 (1993) ("If the United States is

to continue to meet the demands of workers, it will have to encourage other

countries to do the same thing . . . ."); Duffy, supra note 76, at 426 (noting

that mobility of workforce allows employers to move jobs to less protective

jurisdictions and that courts "have recognized the relationship between laws

protective of employees and employment rates in their states").

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[*857]

b. The Employment-At-Will Doctrine. Many scholars have recommended reform of the

employment-at-will doctrine. n126 Although the many variations of suggested

reforms are beyond the scope of this Article, n127 they generally fall into one

of two categories: expansion of the exceptions to the at-will doctrine or

legisla- [*858] tive or judicial abolition of the doctrine. n128 Advocates

believe that these suggested reforms will protect not only employee privacy

expectations, but also their First Amendment rights and due process concerns.

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n126 Under the traditional view of employment at-will, both employees and

employers have the right to terminate the employment relationship at any time

and for any reason. Theoretically, the employee's right to leave the employer

counterbalances the employer's ability to terminate the employee. For a thorough

discussion of the employment-at-will doctrine, see Decker, supra note 9, at 563;

Mark A. Rothstein & Lance Liebman, Employment Law: Cases and Materials (3d ed.

1996). Enormous amounts of literature critiquing the employment-at-will doctrine

exist. See, e.g., Robert M. Bastres, A Synthesis and a Proposal for Reform of

the Employment At-Will Doctrine, 90 W. Va. L. Rev. 319, 346-50 (1988) (arguing

that at-will rule should be discarded and replaced with just-cause protection);

Blades, supra note 35 (laying out argument for judicial intervention in light of

growing unequal bargaining power between employer and employee); Joan M.

Krauskopf, Employment Discharge: Survey and Critique of the Modern At Will Rule,

51 UMKC L. Rev. 189 (1983); Peter Linzer, The Decline of Assent: At-Will

Employment as a Case Study of the Breakdown of Private Law Theory, 20 Ga. L.

Rev. 323 (1986); Peck, supra note 88, at 49 (arguing that at-will rule "does not

accord human dignity the value it deserves" and should be entirely replaced by a

just-cause regime); Clyde W. Summers, Individual Protection Against Unjust

Dismissal: Time for a Statute, 62 Va. L. Rev. 481, 493 (1976) (discussing need

for statutes to remedy arbitrary or malicious discharges and reviewing history

of at-will doctrine). A number of articles analyze the doctrine from a law and

economics perspective. See, e.g., Richard A. Epstein, In Defense of the Contract

at Will, 51 U. Chi. L. Rev. 947, 951 (1984) (arguing that at-will rule maximizes

economic efficiency in employment); Andrew P. Morriss, Bad Data, Bad Economics,

and Bad Policy: Time to Fire Wrongful Discharge Law, 74 Tex. L. Rev. 1901, 1923

(1996) ("Default rules, like the at-will rule, allow individuals freedom to find

employment situations which more closely approximate their preferences."

(footnote omitted)); Richard W. Power, A Defense of the Employment At Will Rule,

27 St. Louis U. L.J. 881, 899 (1983) (suggesting that adopting just-cause rule

would subject employers to voluminous record keeping); J. Hoult Verkerke, An

Empirical Perspective on Indefinite Term Employment Contracts: Resolving the

Just Cause Debate, 1995 Wis. L. Rev. 837, 842 (arguing that courts and

legislatures "should reject mandatory rules and reaffirm the at-will default").

n127 See, e.g., Blades, supra note 35 (arguing for development of tort remedy to

protect employees against their employer's use of abusive power against them);

Cynthia L. Estlund, Wrongful Discharge Protections in an At-Will World, 74 Tex.

L. Rev. 1655 (1996) (arguing that existing wrongful discharge law is inadequate

to provide relief for most egregious and socially harmful abuses of employer

power, and thus, there is need to adopt just-cause standard); Michael J.

Phillips, Disclaimers of Wrongful Discharge Liability: Time for a Crackdown?, 70

Wash. U. L.Q. 1131 (1992) (arguing for use of current contract doctrine to limit

employer's practice of contracting away wrongful discharge liability); Summers,

supra note 126 (arguing that state statutes should protect employees against

unjust dismissal).

n128 See supra note 126 for examples of these arguments. But see Richard A.

Epstein, Forbidden Grounds: The Case Against Employment Discrimination Law 154

(1992) ("The contract at will . . . works like a gyroscope, with a strong

mechanism for self-correction against personal aggrandizement . . . . If the

employee starts to sleep on the job or damage the inventory, the employer has

all the more reason to look for a substitute on the open market."); Bastres,

supra note 126, at 330-31 (stating that wrongful discharge is not satisfactory

solution to problem because it generally redresses employer retaliation only for

refusal to engage in illegal conduct, as distinguished from unethical conduct).

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Recently, Professor Pauline Kim has suggested a more modest reform of the

employment-at-will doctrine aimed specifically at workplace privacy concerns.

She asserts that the public policy exception to the employment-at-will doctrine

can be expanded by the courts to achieve employee privacy protection. n129

Specifically, she argues that common-law privacy rights should be recognized as

a limitation on the traditional employment-at-will doctrine through courts

adopting the invasion of privacy tort as part of the public [*859] policy

exception. n130

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n129 Pauline T. Kim, Privacy Rights, Public Policy, and the Employment

Relationship, 57 Ohio St. L.J. 671, 676 (1996). Terminable-at-will employment

allows both employers and employees the freedom to determine when the employment

relationship will end. The at-will doctrine is often criticized as inherently

unfair. Specifically it may render an employee jobless without requiring the

employer to prove good cause for the discharge. In response to the unjust result

in at-will cases, courts have carved out an exception to the doctrine when the

discharge violates a well-defined public policy. Courts differ, however, with

regard to what circumstances warrant application of the public policy exception

to at-will employment situations. In most states today, the public policy

exception protects employees who are fired for exercising their statutory

rights, performing legal duties, or whistleblowing, because these firings offend

some statutory or judicial declaration of public policy. See, e.g., Petermann v.

Local 1396, International Brotherhood of Teamsters, 344 P.2d 25 (Cal. 1959)

(holding discharge for refusing to commit perjury before legislative committee

wrongful); Nees v. Hocks, 536 P.2d 512 (Or. 1975) (holding employer cannot

discharge employee for serving on jury). The public policy exception was created

from a judicial sense that employers should not be able to coerce their

employees to commit socially undesirable acts under threat of discharge.

Springer v. Weeks & Leo Co., 429 N.W.2d 558 (Iowa 1988). Even Professor Epstein

acknowledges a small place for the public policy exception to at-will employment

when an employee is fired for refusing to commit a crime. See Epstein, supra

note 126, at 952 n.11 (arguing that employment contract to commit murder,

pollute illegally, or commit perjury should be unenforceable).

n130 Kim, supra note 129, at 698-709; see also, e.g., Nagy v. Whittlesey

Automotive Group, 47 Cal. Rptr. 2d 395 (Ct. App. 1995) (holding that termination

of employee for refusing to consent to telephone recordings of his calls

violated California's invasion of privacy laws and thus conditioned employment

on employee's agreement to perpetuate acts in violation of public policy).

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As discussed above, however, the current structure of the invasion of privacy

tort fails to protect employees from all but the most egregious and abusive

privacy invasions. n131 Thus, even if courts begin to rely on the common-law

privacy tort as a public policy exception to at-will employment, they will not

be adding much protection to employee privacy. Further, it is unlikely that

courts will expand the scope of the public policy exception to include

common-law claims. Judges are hesitant to redefine the scope of at-will

employment without legislative guidance, at least partially because of fears

that new exceptions will swallow the rule. n132 Because courts typically have

prohibited recovery on this theory when purely "private" interests are involved,

plaintiffs challenging their dismissals based on information the employer

discovered through surreptitious monitoring have been unsuccessful [*860] with

this claim. n133 As a result, courts have difficulty seeing how privacy claims

can be based on public policy, n134 and courts will rarely interfere with an

employment relationship that is expressly at-will unless they see some adverse

effect on third parties from the employer's actions. n135 Because of the nature

of most privacy violations, however, third party impacts can rarely be shown. In

addition, under the usual employment-at-will case, the employee has been

terminated and then attempts to regain his or her job through a lawsuit. If all

employees who had privacy claims had to be terminated before they could assert

them under this reform to the public policy exception, little would be gained

for employee workplace privacy. It is unlikely that most employees would be

willing to risk termination in order to protect their privacy.

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n131 Supra notes 73-82 and accompanying text.

n132 See, e.g., Murphy v. American Home Prods., Corp., 448 N.E.2d 86, 89-90

(N.Y. 1983) (refusing to adopt public policy exception and holding that "such a

significant change in our law is best left to the Legislature"); Maus v.

National Living Ctrs., Inc., 633 S.W.2d 674, 676 (Tex. App. 1982) (holding that

public policy exception must come about through legislation); Henry H. Perritt,

Jr., The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest

Lie?, 58 U. Cin. L. Rev. 397, 402-03 (1989) (discussing court's fear of

constitutionalizing the workplace). Some courts will stretch the law to remedy

what they see as egregious violations. See Wagenseller v. Scottsdale Mem'l

Hosp., 710 P.2d 1025, 1035 (Ariz. 1985) (reasoning that statute expressed public

policy even though statute was not actually implicated); see also Novosel v.

Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1983) (applying constitutional

restraints to private employer by holding that U.S. Constitution creates "public

policy" for purposes of public policy exception). No guarantee exists that other

courts will be willing to engage in such liberal interpretations of the law.

Lisa B. Bingham, Employee Free Speech in the Workplace: Using the First

Amendment as Public Policy for Wrongful Discharge Actions, 55 Ohio St. L.J. 341,

350-51 (1994) (noting that Novosel has been widely criticized and that

Pennsylvania Supreme Court has indirectly indicated that case does not represent

Pennsylvania law). Indeed, some states recognize no exceptions to the at-will

doctrine. See Andrew P. Morriss, Exploding Myths: An Empirical and Economic

Reassessment of the Rise of Employment At-Will, 59 Mo. L. Rev. 679, 682 & n.8

(1994) (noting that neither Florida nor Rhode Island has exceptions to

employment-at-will doctrine).

n133 For example, despite extensive litigation, private-sector employees rarely

win claims asserting that drug testing invades their privacy rights, absent an

express or implied promise by the employer to respect privacy. E.g., Webster v.

Motorola, Inc., 637 N.E.2d 203, 206-08 (Mass. 1994); Hennessy v. Coastal Eagle

Point Oil Co., 609 A.2d 11, 23 (N.J. 1992); Gilmore v. Enogex, Inc., 878 P.2d

360, 365-67 (Okla. 1994) (all rejecting wrongful termination claims). But see

Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 626 (3d Cir. 1992) ("[B]ased on

our prediction of Pennsylvania law, we hold that dismissing an employee who

refused to consent to urinalysis testing . . . would violate public policy if

the testing tortiously invaded the employee's privacy.").

n134 As one court reasoned, "The right to privacy is, by its very name, a

private right, not a public one." Luck v. Southern Pac. Transp. Co., 267 Cal.

Rptr. 618, 635 (Ct. App. 1990). Because the parties could have lawfully agreed

that employees are subject to drug testing, the court reasoned, terminations for

refusing a drug test cannot be against public policy. Id.; see also James W.

Hubbell, Retaliatory Discharge and the Economics of Deterrence, 60 U. Colo. L.

Rev. 91, 103 (1989) (noting that policies on which retaliatory discharge suit

may be predicated are generally not formulated for protection of employees, but

rather to protect public at large).

n135 For a discussion of the importance of third party effects on employee

claims, see generally Stewart J. Schwab, Wrongful Discharge Law and the Search

for Third-Party Effects, 74 Tex. L. Rev. 1943, 1956-60 (1996) (noting that

claims under public policy exemption must be scrupulously limited to those that

will serve society as whole because judicial rationale for allowing exception in

first place is that plaintiffs should sue only if society needs their efforts to

vindicate its policies).

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3. State Statutes. Some commentators n136 have suggested that existing state

privacy protection laws should be expanded (or new ones adopted) to protect

employee privacy because state statutes have been more responsive to changes in

technology that invade [*861] worker privacy than have other solutions. n137

Frustrated with the lack of movement at the federal level, they have argued that

revisions to these schemes might achieve greater privacy protection for

employees. These statutes, however, fail to provide adequate remedies for

employee privacy violations.

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n136 E.g., Summers, supra note 12, at 722 (asserting that state statutes may

provide means to greater employee protections); Winters, supra note 62, at

119-28 (arguing that best chance for protecting private employee privacy in

workplace, particularly regarding e-mail, lies in area of state law).

n137 State legislatures over the past several years have periodically considered

legislative proposals to regulate monitoring and surveillance in the workplace.

See Boehmer, supra note 2, at 806 & n.427 (detailing these proposals). A variety

of state statutes limit the kinds of information an employer can require of an

employee. See, e.g., Md. Code Ann., Lab. & Empl. 3-701(b) (1991) (stating that

employer may not require job applicants to answer questions about physical,

psychological, or psychiatric conditions unless questions bear "direct,

material, and timely relationship" to job capacity). Other statutes limit the

use of drug testing. See, e.g., Conn. Gen. Stat. 31-51t to 31-51aa (1997)

(requiring reasonable suspicion except where authorized by federal law or where

employees serve in "high-risk" or "safety-sensitive" occupation). Other states

go so far as to ban the use of fingerprinting. E.g., N.Y. Lab. Law 201-a

(Consol. 1983). Legislative protection for employee autonomy can also be found

in statutes which prohibit discrimination for sexual orientation or for

particular relationships. E.g., Cal. Gov't Code 12940(a) (Deering 1996) (marital

status); Wis. Stat. Ann. 111.36(1)(d) (West 1997) (sexual orientation).

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Like common-law privacy claims, regulation of workplace privacy on a state level

often results in unequal protection for employees. n138 Not only are an

employee's rights dependent on the state in which he or she lives, but the

obligations of a multistate employer become muddled. Conduct which would

constitute an invasion of privacy in one state might be completely legal in

another. n139 State-to-state disparities already exist with respect to

protections in wiretap statutes. n140 In addition, state legislation would not

be able to address adequately most electronic communi- [*862] cations that

cross state lines. As seen in recent jurisdictional disputes involving the

internet, n141 the employer runs the risk of facing different laws in various

jurisdictions and uncertainty regarding which state law may govern particular

communications. The employer might face liability even though its home state has

no privacy statute.

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n138 See supra notes 65-72 and accompanying text (discussing current state-law

statutory protection and its weaknesses).

n139 Compare Nader v. General Motors Corp., 255 N.E.2d 765, 770 (N.Y. 1970)

(holding that wiretapping of private party invaded privacy as intrusion into

seclusion under District of Columbia law), with Simmons v. Southwestern Bell

Tel. Co., 452 F. Supp. 392, 396 (W.D. Okla. 1978) (finding no reasonable

expectation of privacy in personal calls made from business phone on which

personal calls were prohibited), aff'd, 611 F.2d 342 (10th Cir. 1979).

n140 Some states have passed new legislation protecting employees from

electronic interceptions and electronic monitoring. See Conn. Gen. Stat.

31-48b(b) (1997) (prohibiting electronic surveillance, including video

surveillance, of any area "designed for the health or personal comfort of the

employees or for safeguarding of their possessions, such as rest rooms, locker

rooms, or lounges"); Nev. Rev. Stat. 200.650 (1995) (prohibiting surreptitious

monitoring of private conversations); N.J. Stat. Ann. 2A:156A-2 (West 1985 &

Supp. 1997) (including statutory protection for "electronic communication"). A

majority of states, however, have not yet amended their state laws to provide

protection from electronic monitoring. See Hebert, supra note 9, 8A:19-21

(discussing the few state laws that directly concern employer use of electronic

monitoring and surveillance).

n141 See John Gibeaut, Questions of Authority: Jurisdiction Cases Crop Up as

Internet Sales Erase Borders, A.B.A. J., June 1997, at 42 (summarizing recent

internet cases).

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Finally, on a practical note, state legislative efforts are more likely to be

stymied by corporate lobbying. n142 Attempted legislative action on the state

level has been repeatedly blocked by company threats to move their business to a

state without the proposed restrictions. n143 These states' abortive attempts to

implement statutes to protect employee privacy underscore the need for

nationally uniform treatment of employee monitoring.

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n142 See generally R. Dahl, Who Governs?: Democracy and Power in an American

City (1961) (discussing political influence in New Haven, Connecticut); Office

of Tech. Assessment, supra note 8, at 115 (noting that "difficulties of

legislating against powerful economic interest at the State level" is factor

that favors congressional action); Symposium, Theory of Public Choice, 74 Va. L.

Rev. 167 (1988) (discussing legislative process and public choice).

n143 For example, in 1981 West Virginia enacted a statute prohibiting telephone

monitoring unless the employer adhered to strict guidelines, including using a

warning tone audible to both parties to the conversation. The law was amended in

1986, allegedly because AT&T threatened to cancel plans for a new office in the

state capital unless the statute was altered. Susser, supra note 47, at 592; see

also Gantt, supra note 63, at 411 (noting that electronic workplace monitoring

statute was blocked in Massachusetts after corporations threatened to relocate

to other states).

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C. Constitutional Proposals

One of the more extreme proposals suggested to solve the problem of employee

privacy, at least with respect to electronic monitoring and surveillance, has

been Professor Laurence Tribe's proposal of a Twenty-Seventh Amendment to the

United States Constitution. Professor Tribe's proposed amendment reads, in full:

This Constitution's protections for the freedoms of speech, press, petition and

assembly, and its protection against unreasonable searches and seizures and the

deprivation of life, liberty or property without [*863] due process of law,

shall be construed as fully applicable without regard to the technological

method or medium through which information content is generated, stored,

altered, transmitted or controlled. n144

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n144 Laurence H. Tribe, Address to Conference on Computers, Freedom and Privacy

(Mar. 1991), in Rosalind Resnick, The Outer Limits, Nat'l L.J., Sept. 16, 1991,

at 1, 32. For a discussion of how new technology is testing civil liberties

under current law, see Resnick, supra; see also Steven Winters, The New Privacy

Interest: Electronic Mail in the Workplace, 8 High Tech. L.J. 197 (1993) (noting

lack of protection for e-mail and suggesting that when gap between law and

technology exists courts should allow causes of action under old laws instead of

deferring to legislature).

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The purpose of the new amendment is to protect individual privacy rights

increasingly threatened by technological advancements. n145 Professor Tribe's

concern is that digital technologies have so eroded our privacy that nothing

less than a constitutional amendment will protect this right from extinction.

n146 The proposed amendment would provide a broader approach to privacy

protection than the other proposals, as it would include protection for privacy

rights outside the workplace. It is unlikely, however, that the amendment would

resolve the workplace privacy issue. Even if any of the gargantuan hurdles that

accompany any effort to amend the Constitution were overcome, the state action

requirement would limit the practical effect of the amendment on private

employers.

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n145 See Henry Weinstein, Amendment on Computer Privacy Urged, L.A. Times, Mar.

27, 1991, at A3 (discussing Tribe's proposal).

n146 Professor Tribe states, Whether adopted all at once as a constitutional

amendment or accepted gradually as a principle of interpretation that I believe

should obtain even without any formal change in the Constitution's language, the

corollary I would propose would do for technology in 1991 what I believe the

constitution's Ninth Amendment, adopted in 1791, was meant to do for text.

Resnick, supra note 144, at 1.

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Little of this scholarship has seen any real-world application. The Supreme

Court has shown no interest in substantially revisiting its state action

jurisprudence or in creating new rights. n147 State and federal courts at all

levels have been hostile [*864] to the creation of new tort laws or the

modification of the employment-at-will doctrine. n148

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n147 For a critical view of the extension of state constitutional guarantees to

private actors, see Sundby, supra note 12, at 144-46 (noting that court finding

of state action risks triggering claims of full panoply of constitutional

rights- that a private employer be bound by all constitutional limitations of

government employer). In addition to the observation reflected in the text,

Professor Sundby also observes that extending constitutional protection to

private actions would expand the judiciary's power to find constitutional

violations; but that is true whenever a constitution is amended to add a new

provision. Professor Sundby acknowledges that the state-private distinction

appears most arbitrary in the employment context. Id. at 144 n.11. For a more

general critique, see Jesse H. Choper, Thoughts on State Action: The "Government

Function" and "Power Theory" Approaches, 1979 Wash. U. L.Q. 757, 762-63 (finding

that Court may become burdened with designing detailed regulations for these

private employers); Krotoszynski, supra note 13, at 334 (finding state action in

one case opens door to claims in other unforeseeable cases which will be

difficult to distinguish on principled grounds); Summers, supra note 12, at 695

n.24 (explaining that constitutional adjudication standing alone creates

rigidity which is largely beyond ability of legislative branch to limit or

shape).

n148 See, e.g., Deshaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,

191 (1989) (holding that state's failure to protect child from private violence

did not violate his due process rights). Many commentators acknowledge that the

current trend of the Court is to limit individual rights. See Robin West,

Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 14

(1994); William J. Brennan, Jr., State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489, 502 (1977) (arguing for reassessment of

state action in light of recent decisions); Reuben, supra note 6, at 39 (noting

"dim view" federal courts have recently taken towards privacy rights). But see

Shelley v. Kraemer, 334 U.S. 1, 19 (1948) (holding that judicial enforcement of

racially restrictive covenant constituted state action for purposes of

Fourteenth Amendment).

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The preceding discussion has pointed out general defects in the existing and

proposed legal solutions to protect employee privacy rights which will limit or

frustrate effective protection of those rights. The inadequacies of both the

current scheme for privacy protection and the proposed reforms point toward the

need for a comprehensive federal statute which will effectively protect these

rights.

III. The Public/Private Dichotomy in the Workplace

The public/private distinction grew out of the desire to protect individuals and

their property from governmental interference. n149 Although the original intent

was to establish individual rights vis-a-vis government encroachments, the

distinction has since been used to distinguish between, among other things,

public and private ownership, free enterprise and public policy, and public and

private employees.

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n149 See generally Morton J. Horwitz, The History of the Public/Private

Distinction, 130 U. Pa. L. Rev. 1423 (1982) (discussing origins of

public/private distinction).

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[*865]

With respect to privacy rights, the public/private distinction has effectively

divided the workplace into disparate "public" and "private" sectors. n150

"Public" employment means employment in local, state, or national government

departments and their agencies. By definition, it is "state action" and is

subject to constitutional restraints. "Private" employment, i.e., employment in

non- government-owned entities, remains virtually immune to constitutional

considerations. n151

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n150 See supra notes 12-20 and accompanying text (discussing public/private

dichotomy and limited protection afforded private sector employees); see also

Richard S. Murphy, Property Rights in Personal Information: An Economic Defense

of Privacy, 84 Geo. L.J. 2381 (1996) (discussing privacy rights as property

rights).

n151 Fourth Amendment rights do apply to private-sector employees under limited

circumstances when the private employer acts under color of federal or state law

as a result of the direction of government regulations or law enforcement

officials. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614-16

(1989) (holding Fourth Amendment applicable to drug testing conducted by private

employers pursuant to government regulations). Constitutional provisions may

also apply to private employers that act as government bodies or substantially

undertake governmental functions. See, e.g., Marsh v. Alabama, 326 U.S. 501, 508

(1946) (ascribing state-actor status to private corporation essentially acting

as municipality in company-owned town).

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The public/private distinction often has insulated private employers from

governmental scrutiny or regulation. This has fostered an enormous amount of

diversity, flexibility, and creativity in the American workplace. At the same

time, it has resulted in a serious imbalance in workplace privacy rights between

public and private workplaces, despite the fact that the two workplaces are

often indistinguishable as business organizations and enterprises.

Because most Americans work in the private sector and are therefore not

protected by constitutional constraints, n152 the public/private distinction

operates against their workplace privacy rights. In recent years, the situation

has worsened because a decreasing proportion of citizens work for the government

and labor union membership is on the decline. n153

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n152 Kim, supra note 129, at 680 (noting that in 1995 fewer than 11% of American

employees worked for government entity and thus received constitutional

protections in workplace).

n153 Unions represented merely 11% of the workforce in 1996. Rachel Geman,

Safeguarding Employee Rights in a Post-Union World: A New Conception of Employee

Communities, 30 Colum. J.L. & Soc. Probs. 369, 370 n.6 (1997); see also

Katherine Van Wezel Stone, The Legacy of Industrial Pluralism: The Tension

Between Individual Employment Rights and the New Deal Collective Bargaining

System, 59 U. Chi. L. Rev. 575, 578 (1992) (reporting that union membership has

declined from almost 25% of nonagricultural workforce in 1980 to less than 17%

in 1990). Many believe that union membership may fall to 5% in the near future.

E.g., Alan Hyde, Employee Caucus: A Key Institution in the Emerging System of

Employment Law, 69 Chi.-Kent L. Rev. 149, 149 (1993) (discussing how employees

will express and act on grievances if union density falls to 5% of workforce).

Scholars have noted that this decline in the influence of collective bargaining

has accompanied an increase in the legally enforceable rights for individual

employees. Stone, supra, at 576; cf. Clyde Summers, Effective Remedies for

Employment Rights: Preliminary Guidelines and Proposals, 141 U. Pa. L. Rev. 457,

460 (1992) (noting that collective bargaining has been ineffective in providing

protection to majority of workers and that courts and legislators have attempted

to manage problem). The importance of union membership in protecting privacy

rights can be seen in several recent National Labor Relations Board decisions.

See Colgate-Palmolive Co., 323 N.L.R.B. No. 82, 155 L.R.R.M. (BNA) 1034 (Apr.

23, 1997) (ordering company to bargain with union over installation of hidden

workplace cameras in company's facilities); Timekeeping Sys., Inc., 323 N.L.R.B.

No. 30, 154 L.R.R.M. (BNA) 1233 (Feb. 27, 1997) (holding that employee who was

fired after sending electronic mail messages to coworkers complaining about

employer's new vacation policy was found to be engaged in protected activity).

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[*866]

The increasing scholarly criticism of the public/private distinction in the

privacy arena reflects a common belief that the current distinction unfairly

insulates many unconstitutional invasions of privacy from judicial review. n154

A review of some recent cases highlights the shortcomings that have led so many

to question the utility of the public/private dichotomy when dealing with

employee privacy issues, and also provides hints of a framework that might

overcome or lessen the effect of these shortcomings.

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n154 Critics of the state action doctrine argue that it does not sufficiently

protect individual autonomy values because the person discriminated against has

an interest in the constitutional value of equal treatment. Chemerinsky, supra

note 12, at 509-11, 536-41; Kevin Cole, Federal and State "State Action": The

Undercritical Embrace of a Hypercriticized Doctrine, 24 Ga. L. Rev. 327, 354-55

(1990).

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A. Public Employee Privacy Protections

Unlike private-sector employees, public employees may challenge workplace

searches and monitoring activities on the grounds that they violate

constitutional provisions protecting the right to privacy, n155 or the Fourth

Amendment prohibition of unreasonable [*867] searches and seizures. n156

Public employees may also challenge actions by way of federal and state statutes

enacted for their benefit. n157 Thus, government employees do not check their

privacy rights at the workplace door.

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n155 The right to privacy recognized under the United States Constitution has

been held to extend to two types of privacy rights: the interest in making

certain kinds of personal decisions, Doe v. Attorney Gen. of United States, 941

F.2d 780 (9th Cir. 1991), and the interest in avoiding disclosure of certain

types of personal information, Whalen v. Roe, 429 U.S. 589, 599 (1977). This

limits government inquiries into its employees' prior sexual activities and

associations, past drug and alcohol use, mental health history, and personal

financial information. See, e.g., Thorne v. City of El Segundo, 726 F.2d 459,

468 (9th Cir. 1983) (past sexual history); American Federation of Government

Employees v. United States R.R. Retirement Bd., 742 F. Supp. 450, 455 (N.D. Ill.

1990) (alcohol and drug use); cf. Fraternal Order of Police v. City of

Philadelphia, 812 F.2d 105, 109 (3d Cir. 1987) (physical and mental condition;

financial information; gambling habits; and alcohol use); National Treasury

Employees Union v. IRS, 843 F. Supp. 214, 218 (W.D. Tex. 1992) (illegal drug use

during past five years), vacated, 25 F.3d 237 (1994).

n156 U.S. Const. amend. IV ("The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . ."). The Fourth Amendment applies to the

state governments through the Due Process Clause of the Fourteenth Amendment.

U.S. Const. amend. XIV, 1; Mapp v. Ohio, 367 U.S. 643, 655 (1961).

n157 See generally J. Thomas McCarthy, The Rights of Publicity and Privacy

5.9[D][1]-[2] (1987) (providing discussion of public employee statutory rights).

Both the Freedom of Information Act (FOIA), 5 U.S.C. 552 (1994) and the Privacy

Act of 1974, 5 U.S.C. 552a (1994), have been applied to protect public-sector

employees from their employers' disclosure of, or impermissible use of personal

information. For a discussion of the privacy protection these statutes afford

public-sector employees, see Decker, supra note 9, at 44 and Justin D. Franklin

& Robert F. Bouchard, Guidebook to the Freedom of Information and Privacy Acts

(2d ed. 1991). Private-sector employees generally have no similar protections;

consequently, their employers are not bound by these restrictions on disclosure.

See Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between

Privacy and Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1, 34-72

(examining public and private consequences of government disclosure of personal

information and noting that FOIA and Privacy Act provide limited degree of

privacy protection to private-sector employees by limiting disclosure of certain

information maintained by federal agencies). Additionally, statutes governing

public employment have been construed in various contexts to protect

public-sector employees against discipline for conduct unrelated to the job.

See, e.g., McLeod v. Department of the Army, 714 F.2d 918, 920-21 (9th Cir.

1983) (stating that army warehouse worker could not be discharged for marijuana

possession); Morrision v. State Bd. of Educ., 461 P.2d 375, 386 (Cal. 1969)

(finding that statute which permits revocation of teaching credential for acts

of "moral turpitude" does not permit revocation based on mere homosexual

conduct); Golden v. Board of Educ., 285 S.E.2d 665, 669 (W. Va. 1981) (holding

high school guidance counselor could not be fired for allegedly immoral conduct

off the job).

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This Section will focus on the protections from workplace surveillance the

Fourth Amendment provides to government employees. The Amendment helps guarantee

an individual's privacy and dignity n158 against certain intrusive acts by

govern- [*868] ment entities, including government employers. n159 For a

workplace intrusion to constitute a "search or seizure" under the Fourth

Amendment, there must be an invasion of an employee's reasonable subjective

expectations of privacy. n160

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n158 See New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (stating that basic

purpose of Fourth Amendment is to protect privacy and dignity of individual

against unreasonable intrusion by state); Wolf v. Colorado, 338 U.S. 25, 27

(1949) (stating that Fourth Amendment recognizes such unreasonable intrusions as

unlawful because they involve violation of constitutionally protected liberty of

the person, a liberty "basic to a free society").

n159 National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989);

O'Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion); American Postal

Workers Union v. United States Postal Servs., 871 F.2d 556, 560 (6th Cir. 1989).

n160 Terry v. Ohio, 392 U.S. 1, 9 (1968); 1 Wayne R. LaFave, Search and Seizure

2.1(c) (2d ed. 1987); Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 384 (1974); Morgan Cloud, Pragmatism,

Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. Rev. 199, 250

(1993). For a more general discussion of contemporary attitudes toward privacy,

see Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of

Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at

"Understandings Recognized and Permitted by Society," 42 Duke L.J. 727 (1993).

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In O'Connor v. Ortega, the Supreme Court first addressed the Fourth Amendment's

applicability to government employees in the context of a government employer's

manual search of the contents of a public employee's office, and held that the

employees could have a reasonable privacy expectation at work. n161 The

plurality stated that the existence of reasonable expectations of privacy in the

workplace must be decided on a case-by-case basis and depend on the "the

operational realities of the workplace" such as "actual office practices" and

"legitimate regulation." n162

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n161 480 U.S. at 715-18. The privacy claim in Ortega stemmed from a state

hospital official's search of the office, desk, and file cabinet of a physician

suspected of mismanagement of the hospital's residency program. Id. at 712-13.

During the course of the investigation, hospital employees entered and searched

Dr. Ortega's office, desk, and file cabinets on several occasions, ultimately

seizing a Valentine's Day card, a photograph, a book of poetry, and billing

records of one of Dr. Ortega's private patients. Id. The plurality concluded,

"Searches and seizures by government employers or supervisors of the private

property of their employees . . . are subject to the restraints of the Fourth

Amendment." Id. at 715. According to one view, this move was a great step

forward for individual liberties, since what the Fourth Amendment is all about

is questionable, and it is possible that no one but the police engaged in

certain practices should come within its reach. Amersterdam, supra note 160, at

361-62. But see Edward L. Barrett, Jr., Personal Rights, Property Rights, and

the Fourth Amendment, 1960 Sup. Ct. Rev. 46, 73-74 ("It is only the person who

actually has the narcotics secreted in his bedroom who finds the invasion of his

privacy by the policeman more offensive than that of the immigration inspector

or the health officer.").

n162 Ortega, 480 U.S. at 717. The Court's analysis focused on Ortega's

expectation of privacy in the place of work itself. Noting that "[n]ot

everything that passes through the confines of the business address can be

considered part of the workplace context," id. at 716, the Court stated that

individuals do not lose their Fourth Amendment rights merely because they work

for a government entity and that their personal effects, such as closed luggage

and briefcases, are not removed from the scope of the Amendment's protection

merely because they are brought into the workplace. Id. at 719-21.

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[*869]

After determining that Ortega had a reasonable expectation of privacy in his

desk and file cabinets, n163 the plurality then proceeded to set forth the

standard for workplace searches. Recognizing that an employer might frequently

need to enter and search an employee's office for legitimate work-related

purposes, the plurality concluded that adherence to the Fourth Amendment's

requirements of a warrant and probable cause was impracticable in the employment

setting. n164 Instead, relying on the "special needs" exception to the warrant

requirement, n165 the plurality established a reason- [*870] ableness under

the circumstances test that requires a workplace search to be "justified at its

inception" and reasonable in its scope. n166 The plurality concluded that both

noninvestigatory work-related searches and investigatory searches for evidence

based on a reasonable suspicion of work-related employee misconduct n167 could

be reasonable. n168 The determination of the reasonableness, and thus, the

legality of the search, depended on a balancing between the privacy interests of

the employee and the government's need for "supervision, control, and the

efficient operations of the workplace." n169

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n163 The plurality first found that office practices supported Dr. Ortega's

reasonable expectation of privacy, at least in his desk and file cabinets, id.

at 718, and then concluded that the office search implicated the Fourth

Amendment. Id. The facts demonstrated that Dr. Ortega had occupied the office

for 17 years and had kept numerous personal materials there. It was undisputed

that he had exclusive use of his desk and file cabinets and that the hospital

had never discouraged him from storing personal items at work. Id. at 718-19.

n164 Id. at 725-26. The Court did not address whether the government had to show

"individualized suspicion" because such suspicion was present in this case.

n165 The "special needs" exception applies when "special needs, beyond the

normal need for law enforcement, make the warrant and probable-cause requirement

impractible. . . ." See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)

(Blackmun, J., concurring) (allowing public school officials to search students

upon "reasonable suspicion" and without warrant because of "special needs" of a

school). Recently, in Chandler v. Miller, 117 S. Ct. 1295 (1997), the Court

strongly reiterated the importance of the Fourth Amendment's individualized

suspicion protection and the narrowness of the "special needs" exception,

reaffirming that the government can rarely engage in suspicionless searches and

monitoring. In Chandler, three members of the Libertarian Party seeking office

in Georgia challenged a 1990 Georgia law that required candidates to pass a drug

test to qualify for high state office. Id. at 1298-99. The issue concerned

whether this drug test was a reasonable search in the absence of any reason to

suspect a drug problem among Georgia's office-holders or candidates and with no

reasons to suppose that normal law enforcement methods could not deal with any

problem that arose. Id. at 1304. Writing for the Court, Justice Ruth Bader

Ginsburg said that there exist "limited circumstances in which suspicionless

searches are warranted" and that absent a "special need" for reasons like public

safety, Americans have a constitutional right to be free from such searches. Id.

at 1298, 1302. Justice Ginsburg observed that in earlier cases, including some

involving employee drug testing, the Court had justified the programs on the

basis of the government's "special need" to protect public safety or deter known

drug abuse. Justice Ginsburg warned that the Court's previous decisions

upholding drug testing should not be read as "opening broad vistas for

suspicionless searches." Id. at 1304. In its past decisions, Justice Ginsburg

wrote, the Court established that "the proffered special need for drug testing

must be substantial-important enough to override the individual's acknowledged

privacy interest, sufficiently vital to suppress the Fourth Amendment's normal

requirement of individualized suspicion." Id. at 1303. In finding the Georgia

drug test unreasonable, Justice Ginsburg said that Georgia's argument in the

case was "[n]otably lacking . . . any indication of a concrete danger" and that

the state had failed to supply evidence that its politicians are prone to drug

abuse. Id.

n166 Ortega, 480 U.S. at 725-26.

n167 Reasonable suspicion will exist when an employer legitimately suspects that

an individual employee is abusing assets, id. at 728, or engaging in

work-related sexual misconduct. Schowengerdt v. United States, 944 F.2d 483, 485

(9th Cir. 1991).

n168 Ortega, 480 U.S. at 725-26. The plurality opinion indicated that a search

by a supervisor will "[o]rdinarily . . . be 'justified at its inception' when

there are reasonable grounds for suspecting that the search will turn up

evidence that the employee is guilty of work-related misconduct, or that the

search is necessary for a noninvestigatory work-related purpose such as to

retrieve a needed file." Id. at 726 (citing T.L.O., 469 U.S. at 341). When the

search is related to ordinary law enforcement needs, the Fourth Amendment

warrant requirements apply. Id. at 720.

n169 Id. at 719-20. The plurality remanded the case for a hearing on whether Dr.

O'Connor's thorough search of Dr. Ortega's office, resulting in the seizure of

several personal articles, had been reasonable in its inception and scope under

the newly announced standards because the factual record did not reveal the

extent to which hospital officials may have entered the office for work-related

reasons. Id. at 729.

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By emphasizing the employee's reasonable expectation of privacy and requiring

the employer to provide a legitimate work-related reason for his search, Ortega

provides adequate protection of an employee's reasonable expectation of privacy

in the workplace. n170 Although a government employer may search or monitor its

employees under certain circumstances, if the inquiry moves away from strictly

work-related matters of legitimate interest to the employer, the employer will

be put to the test of demonstrating the "reasonableness" of its monitoring, in

terms of both its inception and scope. The standard permits the employer to

retrieve needed [*871] items from employees' offices while protecting the

employee from overly intrusive employers who may wish to rummage through their

desks for illegitimate reasons. n171 Even where overriding interests justify an

intrusion, the court will examine the scope of the search to ensure that it was

no more intrusive than necessary. n172

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n170 Id. at 716 ("As with the expectation of privacy in one's home, such an

expectation in one's place of work is 'based upon societal expectations that

have deep roots in the history of the [Fourth] Amendment.' " (citation

omitted)).

n171 See Bohach v. City of Reno, 932 F. Supp. 1232, 1234-35 (D. Nev. 1996)

(holding that plaintiffs suffered no constitutional injury under Fourth

Amendment (or under federal wiretap statutes) when their employer accessed their

electronic mail messages); McGregor v. Greer, 748 F. Supp. 881, 883, 889 (D.D.C.

1990) (refusing to grant defendant-government employer summary judgment based on

employee's allegations that her employer read "every word" of her private

letters while conducting inventory of her office); cf. Certain Interested

Individuals, John Does I-V, Who Are Employees of McDonnell Douglas Corp. v.

Pulitzer Publ'g Co., 895 F.2d 460, 464 (8th Cir. 1990) ("We agree that the right

to conversational privacy is protected by the Fourth Amendment.").

n172 See, e.g., Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602,

626-27 (1989) (holding safety interests, which are substantial enough to warrant

drug testing, "may not be used as an occasion for inquiring into [unrelated]

private facts"); National Treasury Employees Union v. Von Raab, 489 U.S. 656,

677-78 (1989) (determining that national security interest will not justify

wholesale drug testing where whole classes of employees are unlikely to have

access to confidential information).

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The Fourth Amendment also has been applied to prohibit a state government from

engaging in certain monitoring techniques unless it can show that a problem

exists that requires monitoring. In Chandler v. Miller, n173 the Court struck

down a state statute imposing drug testing on political candidates because the

state failed to show any problem with drug abuse among state officials or

candidates and also failed to show that its normal law enforcement methods could

not adequately address any potential problem. n174 The state thus failed to meet

the "special needs" exception to the warrant and probable cause requirement of

the Fourth Amendment. n175 Although Chandler arose in the context of political

candidates, the Court focused on many of its government-employment decisions in

reaching its determination; n176 thus, the case may be read as requiring that an

employer have evidence of [*872] an actual problem, rather than a potential or

alleged future difficulty, before engaging in random, suspicionless searches or

monitoring of employees. Under Chandler and Ortega, indiscriminate, groundless

monitoring of personal conversations or activities will likely be held

"unreasonable" and violative of the Fourth Amendment guarantee of privacy. n177

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n173 117 S. Ct. 1295 (1997).

n174 Id. at 1305 (stating that "[h]owever well-meant, the candidate drug test

Georgia has devised diminishes personal privacy for a symbol's sake. The Fourth

Amendment shields society against that state action.").

n175 See id. at 1303 (noting that "the proffered special need for drug testing

must be substantial-important enough to override the individual's acknowledged

privacy interest").

n176 Id.

n177 See id. at 1305 (holding that in situations where "public safety is not

genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search,

no matter how conveniently arranged").

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Courts have not had difficulty applying the Fourth Amendment to electronic

monitoring and surveillance by government employers. n178 In fact, at least one

court has found that workplace surveillance conducted by a government employer

through electronic means is not justified under the "reasonableness" approach

used to judge the constitutionality of manual workplace searches, on the grounds

that electronic monitoring of activities and conversations is more intrusive of

the privacy interests of employees than manual searches. n179 In addition,

courts have found video surveillance of [*873] government employees to be an

"extraordinarily intrusive method of searching." n180

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n178 See, e.g., Lukas v. Triborough Bridge & Tunnel Auth., No. CV-92-3680 (CPS),

1993 WL 597132, at *5-*7 (E.D.N.Y. Aug. 18, 1993) (holding that employees have

reasonable expectation of privacy against having their conversations monitored

in workplace, even when that workplace is tollbooth); United States v. Maxwell,

42 M.J. 568, 575 (C.A.A.F. 1995) (recognizing that individual can have

objectively reasonable expectation of privacy in electronic mail messages

transmitted on on-line computer service while those messages were stored on

service's computers). The Maxwell court's reasoning further suggests that

public-sector employees would also have objectively reasonable expectations of

privacy that their electronic mail messages will not be routinely accessed.

According to the court, [A]ppellant clearly had an objective expectation of

privacy in those messages stored in computers which he alone could retrieve

through use of his own assigned password. Similarly, he had an objective

expectation of privacy with regard to messages he transmitted electronically to

other subscribers of the service who also had individually assigned passwords.

Unlike transmissions by cordless telephones, or calls made to a telephone with

six extensions, or telephone calls which may be answered by anyone at the other

end of the line, there was virtually no risk that appellant's computer

transmissions would be received by anyone other than the intended recipients.

Maxwell, 42 M.J. at 576. But see David E. Steinberg, Making Sense of

Sense-Enhanced Searches, 74 Minn. L. Rev. 563, 583-88 (discussing "cultural

criticism" of Fourth Amendment jurisprudence which places primary emphasis on

physical trespasses in determining reasonable expectations of privacy).

n179 See Varnado v. Department of Employment and Training, 687 So. 2d 1013,

1024-30 (La. Ct. App. 1996) (holding that state employer illegally read and

copied employee's computer files because employee had reasonable expectation of

privacy in his computer and its files, and employer had no justification for

search). But see Williams v. Philadelphia Hous. Auth., 826 F. Supp. 952, 954

(E.D. Pa. 1993) (holding that municipal employee had not stated Fourth Amendment

violation when his employer reviewed diskette, containing work and personal

material, that he had left on his desk); Star Publ'g Co. v. Pima County

Attorney's Office, 891 P.2d 899, 901 (Ariz. Ct. App. 1994) (doubting that

"public employees have any legitimate expectation of privacy in personal

documents that they have chosen to lodge in public computer files").

n180 State v. Bonnell, 856 P.2d 1265, 1273 n.5 (Haw. 1993). The Bonnell court

held that intrusive video surveillance violated postal employees' reasonable

expectation of privacy in their break room; see also Vega-Rodriquez v. Puerto

Rico Tel. Co., 110 F.3d 174, 180 n.5, 184 (1st Cir. 1997) (upholding videotaping

of public work area, but cautioning that cases involving covert use of

clandestine cameras or electronically- assisted eavesdropping require different

analysis); United States v. Taketa, 923 F.2d 665, 675-76 (9th Cir. 1991)

(finding that video surveillance is Fourth Amendment search requiring warrant

and noting its intrusive character (citing United States v. Cuevas-Sanchez, 821

F.2d 248, 251 (5th Cir. 1987))).

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B. The Lack of Privacy Protection for Private Workers

The public/private dichotomy exists to enhance liberty and personal freedom by

protecting individuals from government intrusion. For example, by prohibiting

the government from interfering with an individual's decisions about what

political or religious beliefs she holds or what organizations she wishes to

join, the presumption is that she will enjoy an increased amount of freedom and

individual choice. On the other hand, our system of government generally permits

private individuals to hold or to impose upon their family n181 or even upon

their employees views that they cannot impose on their community at-large. This

result remains true even though the dichotomy may allow undesirable effects to

occur on a local level; because, in the aggregate, the application of the

dichotomy leads to greater freedom. n182

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n181 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (upholding

right of marital privacy); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (1925)

(upholding right to "direct the upbringing and education of [one's] children");

Meyer v. Nebraska, 262 U.S. 390, 400-02 (1923) (upholding right to teach German

language).

n182 Robert Bork observed: The United States was founded as a Madisonian system,

which means that it contains two opposing principles that must be continually

reconciled. The first principle is self-government, which means that in wide

areas of life majorities are entitled to rule, if they wish, simply because they

are majorities. The second is that there are nonetheless some things majorities

must not do to minorities, some areas of life in which the individual must be

free of majority rule. . . . The freedom of the majority to govern and the

freedom of the individual not to be governed remain forever in tension. Robert

H. Bork, The Tempting of America: The Political Seduction of the Law 139 (1990).

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[*874]

The public/private dichotomy acts to prevent the government from adopting

certain regulations and policies that would have the effect of burdening or

limiting an individual's freedom. n183 The dichotomy recognizes that because of

its power and scope, the government should not be able to behave like ordinary

citizens and private businesspeople.

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n183 See Krotoszynski, supra note 13, at 305-06 (explaining that government

cannot necessarily use private companies to execute public policy that has

effect of burdening constitutional rights).

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Ironically, by failing to impose constitutional privacy notions on private

employers, a majority of American employees receive little or no protection for

their reasonable expectations of privacy. n184 Thus the dichotomy works not to

enhance employees' liberty interests, but to limit them. Permitting an employer

to spy on an employee in her office, or monitor her bathroom breaks, chills her

privacy interest and places an unreasonable restriction on her liberty and

autonomy. n185 Because the public/private dichotomy fails to provide its

intended benefits in the workplace privacy context, legislators need to act to

counter its effects. When core constitutional values are at issue, we should

consider carefully whether a violation that occurs in the private sector is any

more tolerable than one that occurs in the public sector. n186

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n184 See supra notes 15-17 and accompanying text (discussing protection of

private-sector employees); see also Sundby, supra note 12, at 144 n.11

(conceding that state/private distinction appears most happenstance in

employment context).

n185 See supra note 46 and accompanying text (discussing need to balance

employee privacy interests against employer business interests, and detrimental

effects to employees caused by privacy invasions).

n186 With the growth of private industry, employees increasingly have as much to

fear from large multinational corporations as they do from the government. Many

Americans are apparently more fearful of their employer than the government.

ACLU Accuses U.S. Employers of Violating Workers' Civil Rights, Daily Rep. for

Executives (BNA) No. 244, at A-13 (Dec. 19, 1990) (discussing report by ACLU

National Task Force on Civil Liberties that found increasing number of employee

privacy right violations). Employee awareness and fear of employer monitoring

and surveillance will grow as the impact of such monitoring is increasingly felt

by the American worker. See Graham, supra note 76, at 1422-23 n.146 (discussing

privacy violations in private sector). As these multinational entities have

grown in importance, they also have gained the potential to have a greater

impact on employees' civil liberties. See Owen Fiss, Why the State?, 100 Harv.

L. Rev. 781, 787-89, 793-94 (1987) (noting ability of wealthy and powerful

interests to limit meaningful public debate and arguing in favor of state

efforts to ameliorate these untoward effects); Summers, supra note 12, at 723

("Our complex and interdependent society provides increasing potential for

exercise of private sovereignties, often by those whose compulsion for

self-aggrandizement transforms them into petty tyrants. Only through the

institutions of government can we protect personal freedoms from private

oppression."). According to a recent Associates Poll, America is more concerned

about privacy than at any time in the last 20 years. Aurora Mackey Armstrong,

Private Eyes, Private Lives, L.A. Times, July 19, 1990, at J10.

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[*875]

Nothing in the nature of public employment makes the protection of employee

privacy rights more important in that sector than the protection of employee

rights in the private sector. n187 The public or private character of an

employer makes no difference to an employee's sense of shock and outrage when a

camera records him urinating in the company men's room while a clock times his

efficiency at completing this most personal of tasks. n188 The fact that public

employees enjoy certain constitutional protections for their privacy

expectations supports an argument for equal treatment that cannot easily be

ignored. n189

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n187 See Grodin, supra note 53, at 14 ("While there are certainly differences

between public and private employees which support different legal analyses of

the employment relationship, the tension created by the distinction will

inevitably be resolved in favor of convergence." (footnotes omitted)). Of

course, it can be argued that the effect of government intrusion undermines more

serious societal concerns. See Sundby, supra note 12, at 144 n.11 (noting that

since taxes pay salaries of public employees, public should have heightened

concern for privacy of public-sector employees). This distinction, however,

provides an insufficient basis for public neglect of a comparable private

employee's privacy interest.

n188 See Robert F. Ladenson, Free Speech in the Workplace and the Public-Private

Distinction, 7 Law & Phil. 247, 260 (1989) (asserting that while state actors

cannot be allowed to abridge free expression because of special "relationship

between governors and governed," private actors must likewise refrain from

controlling expression because of "strong causal relationship between workplace

free speech and fostering of human individuality").

n189 Indeed, it may be argued that the private-sector worker deserves broader

protection for privacy interests than does the citizen in relation to

government. This is so because the private-sector employment relationship is

incident to an enterprise that has a relatively narrow and well-defined goal:

the making of profit. That goal provides more limiting principles on the

legitimate extent of employer control over the activities of employees than do

the broader aims of government. Cf. William A. Creech, The Privacy of Government

Employees, 31 Law & Contemp. Probs. 413, 422 (1966) ("Many laudable and weighty

reasons are advanced by zealous and well-meaning men as justifications for

invading the privacy of government employees.").

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When creating the constitutional standard, the Ortega Court explicitly rejected

the notion that public employees had no privacy [*876] rights in the

workplace. n190 Instead, the Court stated that employees may have a reasonable

expectation of privacy and that this privacy interest would need to be balanced

"against the government's need for supervision, control, and the efficient

operation of the workplace." n191 A glaring deficiency of current statutes and

common-law protections designed to protect private-sector employee privacy is

their failure to consider employees' reasonable expectations of privacy from

these systems.

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n190 O'Connor v. Ortega, 480 U.S. 709, 717 (1987) (plurality opinion) ("[W]e

reject the contention . . . that public employees can never have a reasonable

expectation of privacy in their place of work.").

n191 Id. at 719-20.

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IV. The Need for Comprehensive Congressional Action

The problem before us is how to protect the legitimate privacy expectations of

employees in the private sector. The answer to privacy protection does not

appear to lie in adopting technology-specific statutes or in urging courts to

manipulate existing doctrines and precedents to reach the "right" results.

Instead, the best potential solution to the lack of privacy protection for

private-sector employees is a comprehensive federal statute based on our broad

constitutional principles of privacy. n192 Although I do not intend to set forth

a detailed legislative agenda, I want to highlight the historic importance of

legislation in protecting our norms against private-sector infringement and

thereby promote comprehensive privacy legislation as a solution to the problem.

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n192 See Peck, supra note 21, at 897-98 (arguing that right of privacy will only

be secure if recognized as basic liberty within constitutional pantheon);

Summers, supra note 12, at 696, 702 (arguing that Congress should act to protect

employee rights and that courts and administrative agencies should interpret

these statutes in light of constitutional values at issue).

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A. The Example of Title VII

Responsibility for the protection of constitutional interests against

encroachments by the private sector has often fallen to Congress. n193

Congressional action may be prompted when em- [*877] ployer abuses threaten

individual rights or notions of fundamental fairness or engage public policy

concerns and current regulation fails to protect these concerns. n194 In other

areas where the public/private dichotomy has created a situation that is

fundamentally unfair, the most appropriate solution has been a federal statute.

The best example is Title VII of the Civil Rights Act of 1964. n195 With its

enactment, Congress prohibited private employers from using their control over

jobs to deny workers the right to equal treatment because of race, color,

religion, sex, or national origin. n196 Before Title VII, the Equal Protection

clause did not protect a majority of American employees because they were

employed in, or sought work in, the private sector. As is the case today with

employee privacy interests, the public/private dichotomy had the undesirable

effect of denying employment to some and forcing others to accept terms of

employment that were not equitable. Congress, deciding that such employment

discrimination did not comport with national values, passed Title VII to

regulate [*878] the private action of employers. n197 The extension of the

equal protection principle to private employment now occupies a virtually

unchallenged place in the national mindset. n198 Title VII prohibits adverse

employment decisions based on traits that historically have been, but

normatively should not be, the basis for group disadvantage. n199 Given the

importance of employment to economic and social status as well as to emotional

well-being, n200 employment [*879] discrimination based on immutable traits or

group membership contributes to unfair economic stratification and undesirable

social division. n201 By prohibiting discrimination in the workplace through the

Civil Rights Acts, Congress demonstrated that this type of legislation falls

within its realm of power and responsibility. The workplace privacy dilemma

likewise falls squarely within its jurisdiction.

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n193 Congress has enacted a variety of protections for private-sector employees

ranging from the early child labor laws enacted during the industrial

revolution, to the Civil Rights Act of 1964, to evolving workplace safety

standards. See, e.g., Summers, supra note 12, at 723 (discussing Congress's

responsibility to protect personal freedoms and noting "that it was in fact

performing its function of protecting personal freedoms, as it did [when it

enacted] the Wagner Act, Landrum-Griffin Act, Title VII, and OSHA"); Barbara

Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as

Property, 33 Wm. & Mary L. Rev. 995, 1059-61 (1992) (describing enactment of

child labor laws); David J. Kolesar, Note, Cumulative Trauma Disorders: OSHA's

General Duty Clause and the Need for an Ergonomics Standard, 90 Mich. L. Rev.

2079, 2082 (1992) (discussing prosecution of employers under Occupational Safety

and Health Act (OSHA) when they violate workplace safety standards by allowing

employees to engage in harmful repetitive motions).

n194 See, e.g., Summers, supra note 12, at 723 ("Only through the institutions

of government can we protect personal freedoms from private oppression. As

lessons from labor law teach, that can be achieved only through congressional

action. . . .").

n195 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2 (1994)

(establishing prohibition of employer discrimination on basis of "race, color,

religion, sex, or national origin"). As amended, Title VII states in relevant

part: (1) Employer practices. It shall be an unlawful employment practice for an

employer-(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin; or (2) to limit,

segregate, or classify his employees or applicants for employment in any way

which would deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an employee, because

of such individual's race, color, religion, sex or national origin. Id.

2000e-2(a).

n196 Id.

n197 More specifically, race, sex, religious and ethnic discrimination in

employment does not comport with the Fourteenth Amendment. See U.S. Const.

amend. XIV (prohibiting states from abandoning the privileges and immunities of

U.S. citizens or denying due process or equal protection of the laws, and

empowering Congress to enforce these guarantees through appropriate

legislation); Washington v. Davis, 426 U.S. 229, 239 (1976) (stating that the

central purpose of the Fourteenth Amendment's Equal Protection Clause is the

prevention of government sponsored discrimination, including discrimination in

employment); see also George Rutherglen & Daniel R. Ortiz, Affirmative Action

Under the Constitution and Title VII: From Confusion to Convergence, 35 UCLA L.

Rev. 467, 470 (1988) (noting that Title VII, like the other titles of the Civil

Rights Act of 1964, "was designed to extend the constitutional prohibition

against discrimination from public to private action").

n198 Professor Epstein notes the broad acceptance of the antidiscrimination laws

at the very outset of his attack on those laws. Epstein, supra note 126, at 947;

cf. Lea Brilmayer, Lonely Libertarian: One Man's View of Antidiscrimination Law,

31 San Diego L. Rev. 105, 105-06 (1996) (arguing that breadth and depth of this

consensus provides norm); John J. Donohue, III, Advocacy Versus Analysis in

Assessing Employment Discrimination Law, 44 Stan. L. Rev. 1583, 1584 (1992)

(book review) (arguing that Epstein fails to grasp social benefit associated

with public support for Title VII); Samuel Issacharoff, Contractual Liberties in

Discriminatory Markets, 70 Tex. L. Rev. 1219, 1258 (1992) (book review)

(criticizing absence of normative basis for Epstein's notions of liberty and

aggregate social utility as they pertain to employment discrimination).

n199 Since the passage of Title VII, Congress has enacted laws banning age

discrimination in employment, such as the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. 621-634 (1994), and discrimination based on disabilities, such

as the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12102,

12111-12117, 12202-12213 (1994). In the aftermath of Title VII, Congress passed

the Age Discrimination in Employment Act, 29 U.S.C. 621-634 (1994); the

Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (1994); and the employment

provisions of the Americans with Disabilities Act, 42 U.S.C. 12112 (1994). All

these statutes were based on the equal protection principle established by the

Civil Rights Act of 1964. See, e.g., H.R. Rep. No. 10- 485, pt. 2, at 54 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 336 (explaining that many terms of Civil

Rights Act of 1964 are adopted by ADA); H.R. Rep. No. 95-948, at 4 (1978),

reprinted in 1978 U.S.C.C.A.N. 303, 336 (stating intention to amend Title VII to

make it clear that it protects pregnant women from discrimination, conforming

with original intent of Title VII); Mack A. Player, Employment Discrimination

Law 6.09, at 517 (1988) (noting that ADEA was founded on principles of Civil

Rights Act of 1964).

n200 See Paul C. Weiler, Governing the Workplace: The Future of Labor and

Employment Law 63-67 (1990) (arguing that "[i]f the law is to be responsive to

real life, then it must rest on the footing that employment predominantly takes

the form of a career rather than a casual relationship").

n201 See Cynthia L. Eastlund, Wrongful Discharge Protection in an At-Will World,

74 Tex. L. Rev. 1655, 1655 (1996) (arguing that at-will presumption undermines

existing employment discrimination protections); Harry Hutchinson, Toward a

Critical Race Reformist Conception of Minimum Wage Regimes: Exploding the Power

Myth, Fantasy, & Hierarchy, 34 Harv. J. on Legis. 93, 93 (1997) (calling for "an

intense examination of minimum wage regimes in light of the deplorable situation

facing many minority, low-skilled workers"); Karst, supra note 35, at 529

(noting relation of work to community and explaining impending work shortage

crisis); Richard H. McAdams, Cooperation and Conflict: The Economics of Group

Status Production and Race Discrimination, 108 Harv. L. Rev. 1005, 1007 (1995)

(offering "an economic theory to explain why individuals make material

sacrifices for group welfare").

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B. The Solution-Comprehensive Privacy Legislation

Federal legislation protecting reasonable expectations of privacy in employment

should be enacted to protect private-sector employees from invasive

surveillance. Employers would benefit because such a federal statute would make

compliance more efficient than complying with widely varying state statutes or

common law. n202 Moreover, a comprehensive federal statute would help compel

compliance and deter employer misbehavior. n203

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n202 Cf. Air Transp. Ass'n of Am. v. Professional Air Traffic Controllers Org.,

667 F.2d 316, 323 (2d Cir. 1981) (recognizing need to "ensure a consistent body

of federal labor law by preempting potentially inconsistent state court

adjudication"); NLRB v. Committee of Interns & Residents, 566 F.2d 810, 816 (2d

Cir. 1977) (holding that need for uniform development of labor law mandates

broad federal regulation).

n203 The federal statute I envision would simply provide an alternate theory for

individuals with other claims under tort law or another statutory provision. See

generally David C. Yamada, Voices from the Cubicle: Protecting and Encouraging

Private Employee Speech in the Post-Industrial Workplace, 19 Berkeley J. Emp. &

Lab. L., 1, 58-59 (1998) (providing draft language for federal statute

protecting employee speech rights in workplace).

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My proposed legislation would codify with some modifications the standard set

forth in O'Connor v. Ortega. n204 Its central focus [*880] would be on

employees' reasonable expectations of privacy. An employer would be required to

have a legitimate business reason for any surveillance it chose to conduct. It

would include new remedies, such as a statutory minimum damage award, injunctive

relief and attorneys' fees. n205 Evaluation of privacy claims under the new

legislation would otherwise remain consistent with Fourth Amendment analysis.

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n204 480 U.S. 709 (1987) (plurality opinion). Several commentators have

complained that the current Fourth Amendment standard set forth in Ortega fails

to provide adequate protection to the private expectations of public-sector

employees. E.g., Heather L. Hanson, The Fourth Amendment in the Workplace: Are

We Really Being Reasonable?, 79 Va. L. Rev. 243, 250-52 (1993); Tracey Maclin,

Constructing Fourth Amendment Principles from the Government Perspective: Whose

Amendment Is It Anyway?, 25 Am. Crim. L. Rev. 669, 673-74 (1988) (arguing Fourth

Amendment procedural safeguards are "needed to discourage arbitrary governmental

intrusions"); Nadine Strossen, The Fourth Amendment in the Balance: Accurately

Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U.

L. Rev. 1173, 1182 (1988) (noting Court has failed to delineate specific

criteria to determine whether a search is reasonable); Scott E. Sundby, A Return

to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn.

L. Rev. 383, 386 (1988) (stating relationship between reasonableness clause and

warrant clause is unclear). Despite its sometimes narrow interpretation of the

protections afforded government employees, the Fourth Amendment standard sets a

minimum level of protection for all government employees and certainly provides

more adequate protection than private-sector employees can glean from the

current sparse but eclectic mixture of statutes and common law.

n205 In order to compensate employees for invasions of privacy and to deter

overly invasive employer monitoring, it will be necessary to provide a minimum

level damage award. See supra note 120 (noting that emotional distress awards

have been lowered by recent tort reform legislation). In addition, injunctive

relief would permit the court to prohibit certain types of employee monitoring.

Finally, attorneys' fees would aid plaintiffs in bringing these suits to

vindicate their rights. See Paul Weiler & Guy Mundlak, New Directions for the

Law of the Workplace, 102 Yale L.J. 1907, 1915 (1993) (describing plight of

ordinary nonunion employees whose individual lawsuits for being fired from

low-paying job do not have potential value likely to attract top litigators).

Similarly, another commentator has argued: To the extent that the cost of legal

representation is the obstacle, one might expect the contingent fee system,

which operates in wrongful discharge cases, to overcome the problem . . . . A

contingent fee system, however, might also discourage attorneys from

representing plaintiffs for whose lower levels of lost income would result in

lower levels of damages and hence smaller expected returns for the attorneys.

Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy

Exception, 96 Harv. L. Rev. 1931, 1943 (1983) (footnotes omitted).

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By stating explicitly that employees may have reasonable expectations of privacy

at work, the statute would reaffirm the importance of employee privacy. Like

Ortega, n206 the statute would mandate that an employer demonstrate a legitimate

business interest in order to justify the monitoring of employees. To satisfy

this burden, the employer would be required to show that it had a business need

that could only be satisfied by surveillance of [*881] employees and that this

need outweighed the employee privacy interests at issue. The law also would

require that the employer use the least intrusive monitoring available. n207 The

law would create incentives for employers to use, whenever possible,

non-content-based monitoring techniques, n208 such as setting employee

productivity and output goals, rather than intrusive surveillance. These facets

of the law would help eliminate some of the most egregious forms of employer

monitoring. The current law does not require that employers give any thought to

minimizing the intrusiveness of monitoring. By requiring employers to use

non-content-based surveillance techniques and to concentrate on employee privacy

expectations, employers would not be able to continue abusive privacy intrusions

which may ultimately minimize employee privacy expectations to the point where

courts might consider employees to have no privacy interest at all. n209

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n206 480 U.S. at 719.

n207 Least intrusive monitoring means employer surveillance that accomplishes

the employer's stated objective with the minimum amount of interference with

employee privacy rights. See, e.g., Yamada, supra note 203, at 8-22 (examining

arguments on importance of free-flow of information in workplace and necessity

for federal statute to protect worker's speech to prevent overly intrusive

monitoring and discipline).

n208 Employer interception normally only serves the less cogent goal of

minimizing frivolity on the job, and the efforts at such interception would

arguably be spent more effectively in monitoring the actual work product of the

employees. Cf. Jesse H. Choper et al., Cases and Materials on Corporations 25-28

(3d ed. 1989) (discussing shareholder supervision of corporate management and

stating how it is inappropriate to spend large sums on oversight to protect

against minor recurring loss); Murphy, supra note 150, at 2395-96 (examining

disclosure of private information from economic standpoint, indicating

disclosure appropriate where publication value exceeds individual's privacy

interest). I use non-content- based monitoring to mean employer surveillance

that reviews productivity (i.e., the number of electronic mail messages written,

the number of telephone calls made, the number of letters mailed) and thus does

not read, surveil or overhear the employee's written or oral communications. Any

productivity monitoring should be developed with employee input if the employer

wishes the monitoring to work well. See Weiler, supra note 200, at 283-306

(arguing for employee participation committees and exploring their structure and

functions, relationships to unions, and implementation).

n209 One of the criticisms of the O'Connor v. Ortega standard has been that it

permits an employer to decrease employees' reasonable expectations of privacy by

rearranging its workplace in such a way that no reasonable person would have any

expectation of privacy. See, e.g., David L. Faigman, Reconciling Individual

Rights and Governmental Interests: Madisonian Principles Versus Supreme Court

Practice, 78 Va. L. Rev. 1521, 1578 (1992) (criticizing Court's application of

balancing tests to Fourth Amendment and its "failure to adequately scrutinize

the government's interests when a fundamental right is at stake"); Harold J.

Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment,

74 Tex. L. Rev. 49, 51 (1995) (arguing that reasonableness of seizure needs to

be modified to ensure that it adequately protects uses government has for

information or property obtained); Scott E. Sundby, Everyman's Fourth Amendment:

Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751,

1765-71 (1994) (describing how adoption of reasonableness balancing test has led

to erosion of Fourth Amendment privacy rights). By requiring employers to use

the least intrusive monitoring techniques and forcing them to focus on

productivity and other forms of non-content-based performance monitoring, the

employer no longer can create a workplace setting in which employees have no

privacy expectations.

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[*882]

Although this statute would recognize that employees have reasonable privacy

expectations at work, it would not hamstring employers. For instance, Supreme

Court cases such as National Treasury Employees Union v. Von Raab n210 and

Skinner v. Railway Labor Executives' Association n211 have allowed privacy

intrusions under the constitutional standard when the government demonstrated

the appropriate countervailing interests. As in these cases, the weight given to

the employer's business needs would depend on a case-by-case analysis of the

particular factors in each situation. For example, an employer may have a

legitimate business interest in not having its employees send out political

leaflets from its electronic mail systems. In order to ensure that employees are

not engaged in such activities, the employer need only monitor the number of

broadcast (i.e., multiple recipient) messages an employee sends each day. If an

employee is sending messages to hundreds of fellow workers and is not normally

required to do so, there is a strong likelihood that the employee is abusing the

system and may be an appropriate target to survey.

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n210 489 U.S. 656, 677-78 (1989) (holding that national security interest

justifies random drug testing of certain employees but did not justify wholesale

drug testing where whole classes of employees are unlikely to have access to

confidential information).

n211 489 U.S. 602, 628 (1989) (approving drug testing of railroad employees).

But see Chandler v. Miller, 117 S. Ct. 1295 (1997) (prohibiting drug testing of

political candidates when no special need, such as public safety or national

security, is shown).

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Moreover, unlike the PCWA, which imposes specific uniform obligations that are

inflexible and unresponsive to the differences in various work environments,

n212 the Fourth Amendment reasonableness balancing gives employers flexibility

by setting forth a legal framework which does not require the employer to

institute [*883] specific practices. n213 Employers remain free to design

their workplace in the manner that most efficiently balances employee privacy

rights and the company's business needs. It also enables courts to take into

account the particular circumstances of a case when addressing privacy claims.

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n212 Supra notes 94-108 and accompanying text; see also David Smith, Case Note,

Search and Seizure: O'Connor v. Ortega, "He Hit Me First!," 56 UMKC L. Rev. 411,

418-19 (1988) (arguing that employers want to maintain efficient offices and

therefore will refrain from most objectionable searches, because those searches

would be "destr[uctive of] the healthy work environment employers strive so hard

to retain").

n213 For an argument that the Fourth Amendment reasonableness standard fails to

adequately protect employees because it does provide, in some people's views,

too much flexibility, see Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn. L. Rev. 349, 390-96 (1974) (favoring a bright-line rule for

the application of the Fourth Amendment); Wayne R. LaFave, The Fourth Amendment

in an Imperfect World: On Drawing "Bright Lines" and "Good Faith," 43 U. Pitt.

L. Rev. 307, 320-22 (1980) (arguing for the adoption of a more objective Fourth

Amendment test). But see Albert W. Alschuler, Bright Line Fever and the Fourth

Amendment, 45 U. Pitt. L. Rev. 227 (1984) (arguing that bright line approach to

Fourth Amendment interpretation is misconceived); Christopher Slobogin, The

World Without a Fourth Amendment, 39 UCLA L. Rev. 1 (1991) (arguing for weighing

of intrusiveness of search or seizure against certainty search or seizure will

be successful).

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By creating explicit statutory recognition for an employee's reasonable

expectation of privacy, the statute would provide employers with the incentive

to rethink their workplace habits so as to respect employee privacy. The law

would provide a minimum level of privacy to all employees without unduly

interfering with the employer's autonomy.

C. Responses to the Critics

Some critics argue that enacting a comprehensive federal workplace statute would

serve as yet another impediment to the efficient operation of the workplace.

n214 They advocate a laissez- [*884] faire approach to employee privacy

concerns that would put relatively few restraints on employers in deciding how

to operate their businesses and treat their employees. Indeed, employers provide

many ostensibly laudable reasons for invading private employees' reasonable

expectations of privacy.

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n214 See Epstein, supra note 128, at 24-27 (1992) (identifying

antidiscrimination laws as unduly costly and asserting that voluntary exchanges

"produce[] gains not only for the parties but also, by indirection, for the

larger society as a whole"); Richard A. Epstein, The Status-Production Sideshow:

Why the Antidiscrimination Laws Are Still a Mistake, 108 Harv. L. Rev. 1085,

1108 (1995) (arguing that such legislation is inefficient); Richard A. Posner,

The Efficiency and the Efficacy of Title VII, 136 U. Pa. L. Rev. 513, 515-16

(1987) (same); see also Gary S. Becker, The Economics of Discrimination 39-55

(2d ed. 1971) (describing price employers must pay to satisfy their "taste for

discrimination"); Samuel Issacharoff, Reconstructing Employment, 104 Harv. L.

Rev. 607, 618-19 (1990) (book review) (describing radical anti-interventionist

position). But see Paul Brest, The Supreme Court, 1975 Term: Foreword: In

Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 6-7 (1976)

(arguing that irrational racial discrimination is defect in decision-making

process). Professor Epstein's attack on employment discrimination laws has been

skillfully and forcefully rebutted by numerous able scholars. E.g., Donohue,

supra note 198, at 1611-14 (recognizing value of Epstein's analysis of social

costs, but decrying failure to balance social benefits of Title VII); James J.

Heckman & J. Hoult Verkerke, Racial Disparity and Employment Discrimination Law:

An Economic Perspective, 8 Yale L. & Pol'y Rev. 276, 291-97 (1990) (finding that

federal antidiscrimination law significantly improved wages and status for

southern black workers between 1965 and 1975); Cass R. Sunstein, Why Markets

Don't Stop Discrimination, in Reassessing Civil Rights 22, 31-34 (Ellen F. Paul

et al. eds., 1991) (arguing that noneconomic factors of preference, belief

formation, and incorporation of baseline norms are significant non-market

influences on discrimination); J. Hoult Verkerke, Free to Search, 105 Harv. L.

Rev. 2080, 2082-96 (book review) (attacking Epstein's theoretical, historical,

and empirical analyses); see also Weiler, supra note 200, at 71, 78 (arguing

that private labor market includes inherent imperfections that call for

government intervention); McAdams, supra note 201, at 1007 (criticizing

assumptions and models that underlie Epstein's thesis while suggesting desire

for esteem as basis for cooperation).

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Nonetheless, employee privacy rights are fundamental rights that should be

protected irrespective of market dynamics, and Congress has seen fit to regulate

otherwise rational market behavior when such behavior is repugnant to societal

norms. n215 Just as Congress determined that race and sex discrimination were

antithetical to American values and were unacceptable in the workplace, Congress

should view privacy intrusions in the same manner.

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n215 For instance, constitutional and statutory restrictions prohibit various

forms of employment discrimination irrespective of market forces. See, e.g.,

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e (1994) (covering

equal employment opportunities). See generally Larry Alexander, What Makes

Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies,

141 U. Pa. L. Rev. 149 (1992). According to Alexander, [D]iscriminatory

preferences are intrinsically morally wrong if premised on error, moral or

factual, about the dispreferred. Discriminatory preferences are extrinsically

morally wrong if their social costs are large relative to the costs of

eliminating or frustrating them. And if a discriminatory preference is morally

wrong-and if there is no moral right that protects its exercise-then there is a

case for legally prohibiting its exercise if the costs of legal prohibition and

enforcement are low relative to the social gains to be achieved. Id. at 219.

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Moreover, evidence exists that monitoring compels employees to develop defensive

mechanisms to protect their privacy that actually cost the employer in lost

productivity and profit. Erecting physical barriers, encrypting communication,

or finding alternative but less efficient means of engaging in an activity all

increase employment [*885] costs. n216 Additionally, studies have demonstrated

that monitored employees experience increased tension and anxiety, which may

produce a decline in employee productivity n217 as well as an increase in

occupational health problems. n218 The perception of mistrust and unfairness

resulting from employer monitoring practices may motivate employees to seek

union representation. n219 [*886] Thus, even in the face of great costs,

employer monitoring continues. It appears that the market has failed to lead the

employer to the most profitable manner in which to operate its business.

Legislation is therefore needed to protect important employee rights as well as

to prevent wasteful employer tactics. Stronger legal protection of privacy would

reduce these socially wasteful costs n220 and foster a more productive workplace

atmosphere.

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n216 One potential downside of e-mail monitoring is that it discourages

employees from using the e-mail service. Electronic mail is designed as a

communications technology and it requires a degree of confidentiality in order

to be used effectively. In the absence of privacy protection, employees will

choose alternative forms of communication that receive more significant legal

protection from interception. Employees who might be wary of employer monitoring

may also hesitate in being completely candid in their e-mail communications.

This hesitancy could lead to miscommunication and ill-informed workplace

decisionmaking. Creating such a disincentive ultimately disadvantages the

employer because employees forego the benefits of using electronic mail and

other new technologies. See Scott E. Feir, Regulations Restricting Internet

Access: Attempted Repair of Rupture in China's Great Wall Restraining the Free

Exchange of Ideas, 6 Pac. Rim L. & Pol'y J. 361, 383 (1997) (discussing China's

recent attempts to limit information exchange on internet through filtering,

blocking and establishing a proprietary Chinese internet, and concluding that

"if a combination of an authoritarian government, restrictive regulations and

physical network controls cannot prevent users in China from accessing and

supplying prohibited information, then similar efforts by other countries will

likely fail as well").

n217 According to a fairly recent Office of Technology Assessment report, no

research evidence exists that demonstrates electronic monitoring actually

increases individual worker production levels. See generally Office of Tech.

Assessment, supra note 8, at 47 (discussing Michael J. Smith, Ph.D. et al.,

Motivational, Behavioral, and Psychological Implications of Electronic

Monitoring of Worker Performance (1986)). Indeed, in many cases, the negative

effects of electronic monitoring (e.g., increased employee stress) have actually

resulted in a decrease in productivity. See Peter Blackman & Barbara Franklin,

Blocking Big Brother: Proposed Law Limits Employers' Right to Snoop, N.Y. L.J.,

Aug. 19, 1993, at 5, 5 (discussing a recent survey that found that a majority of

employees who were monitored for workplace efficiency could not perform their

tasks effectively because they were required to work too quickly); Kilborn,

supra note 43, 1, at 1 (reporting connection between high employee turnover

rates and increased surveillance); Bernard Wray, Electronic Monitoring in the

Workplace, Letter to the Editor, N.Y. L.J., Aug. 28, 1990 at 2, 2 (reporting

that Secretary- Treasurer of Committee on Labor Relations of New York County

Lawyers Association claimed that "[t]here simply is no credible evidence or

factual or statistical proof that electronic monitoring and surveillance have

achieved any positive results for employers").

n218 See supra notes 47-48 and accompanying text (noting that monitoring and

surveillance may cause unusual incidence of stress and stress-related illnesses,

both physical and psychological).

n219 See Boehmer, supra note 2, at 762 (discussing worker resistance to

monitoring that has resulted in unionization efforts or loss of key employees).

Due to electronic monitoring's detrimental effects on workers, several critics

of the practice have argued that monitoring ultimately will impose costs on

employers in the form of high turnover, low morale, and rising healthcare costs

attributable to stress-related disorders. One mail-order firm experienced 80%

turnover when it implemented a covert electronic monitoring system. 137 Cong.

Rec. S2430 (daily ed. Feb. 27, 1991) (statement of Sen. Simon). See, e.g.,

Jennifer Oldham, Technology: A Love-Hate-Relationship; Blessing or Burden?

(quoting Information Sciences Professor J. Michael Pemberton, University of

Tennessee as stating "I've never personally seen a credible research-based study

that proves that information technologies enhance worker productivity.").

Patrice Duggan Samuels, Who's Reading Your E-Mail? Maybe the Boss, N.Y. Times,

May 12, 1996, 3 at 11 (discussing recent cases involving employer monitoring and

the employee's inability to protect their privacy rights and that such invasions

neither establish healthy environment for employment nor create great deal of

good will).

n220 Despite these negative consequences, the factors permitting the use of

systems for workplace monitoring and surveillance make it likely that, absent

restrictive legislation, there will probably be a continued increase in the use

of monitoring and surveillance in the workplace due mostly to the relatively low

purchase cost of monitoring and surveillance systems. See Office of Tech.

Assessment, Federal Government Information Technology: Electronic Surveillance

and Civil Liberties 62-64 (1985) (noting that as videotape surveillance becomes

cheaper and more accessible, its use has been increasing dramatically).

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In addition, current labor conditions do not permit employees to bargain

effectively over the protection of important rights such as privacy. The global

mobility of labor and capital have decreased employees' ability to bargain.

Moreover, employees are often unaware that workplace monitoring exists, and it

is only when an employer takes action based on the results of its surveillance

that the employee can see that his or her rights have been harmed. Because the

marketplace has failed to provide adequate protection to employee privacy,

statutory protection is essential.

Conclusion

Despite our historic commitment to privacy rights in the United States, it has

become increasingly common for employers to monitor the actions and

communications of their employees. Recent technological and scientific advances

have greatly facilitated this assault on privacy.

[*887]

At present, Congress and the state legislatures have recognized some limitations

on the employer's ability to monitor its employees. Current privacy law,

however, is inadequate and inconsistent. In the interest of fairness, equity and

equal rights for all employees, a nationally uniform protection for employee

privacy rights should be provided. Congress should address the lack of privacy

protection that private- sector employees receive in the same manner in which it

addressed employment discrimination-with a comprehensive federal statute. Such a

statute should recognize that private employees, as well as public employees,

have a reasonable expectation of privacy at work, and that this expectation

cannot be disturbed absent an overriding and legitimate employer need.

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