Employee_Privacy_in_the_High_Tech_World

Employee_Privacy_in_the_High_Tech_World - Copyright (c)...

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Copyright (c) 2006 by Orange County Bar Association Orange County Lawyer May, 2006 48 Orange County Lawyer 18 FEATURE: EMPLOYEE PRIVACY IN THE HIGH-TECH WORLD By Michael Baroni Michael Baroni is General Counsel and Secretary for BSH Home Appliances Corporation. He has written heavily on law and technology, including a number of cutting-edge pieces for The New York Times. He currently serves as Co-Chair of the OCBA's Product Liability Section and may be contacted at MichaelBaroni@hotmail.com . TEXT: [*18] "Naked x-ray" machines. Pens with cameras the size of a pin-head. Cell phones with GPS tracking. Secret voice- stress analyzers used to determine if an employee is lying. Chip implants and office "bugs". Technological advances have drastically altered the modem workplace in recent years, far beyond a plainly-visible video camera mounted in a common area or over a cashier's head. Employers now have the ability to obtain relatively inexpensive "spy" technologies to track, monitor, and record employees and their communications anytime and anywhere -- from cubicles to water coolers, executive offices to home offices, and Internet chat rooms to corporate cars. Employees are often fully exposed, whether they know it or
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not. General Principles of Employee Privacy It is well established that employees are entitled to a "reasonable expectation of privacy." This is a vague standard, however, requiring an analysis of all relevant factors from the viewpoint of a reasonable person, a viewpoint which is shaped by ever-changing societal norms. Furthermore, the right to privacy is not absolute; it is always balanced against competing interests, such as the desire of an employer to prevent theft or employee drug use. Even the most fundamental of privacy rights, such as protection against involuntary sterilization or freedom to pursue familial relationships, can conceivably be over-ridden by a compelling government interest. Also, absent a statute to the contrary, private entities conceivably could successfully defend invasion of privacy claims with a compelling interest. California Privacy Law In California, an employee has three primary theories for bringing an invasion of privacy claim: (i) The California Constitution; (ii) California's Privacy Act; and (iii) the common law tort of intrusion. California Constitution: Privacy is a specifically referenced right under Article 1, § 1 of the California Constitution, and it applies to both governmental and private entities. A plaintiff must establish the following for a claim: (i) a "reasonable expectation of privacy" under the circumstances; (ii) a legally protected privacy interest (which is fundamental to personal autonomy); and (iii) conduct by the defendant that constitutes a "serious" invasion of privacy. Defendants can escape liability if they show they had a legitimate interest
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and used the least intrusive means given the circumstances.
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Employee_Privacy_in_the_High_Tech_World - Copyright (c)...

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