An employee’s right to privacy comes from four sources: the United States Constitution, state constitutions, statutory sources, and common law. In Massachusetts the basic restriction on private conduct is found in the Massachusetts Privacy Act (MPA.) The MPA states that “a person shall have a right against unreasonable, substantial or serious interference with his privacy.”
In the workplace setting, an invasion of privacy can include: a) inquiries into private facts, (b) physical searches of persons or the premises, (c) drug testing, and (d) surveillance and monitoring of employee conduct.
Here are some guidelines to help your business to act within the parameters of the MPA:
- Inquiries into an employee’s non-workplace conduct are permissible if there is a legitimate business purpose for the information. Be aware, however, that the method of inquiry as well as the subject of the inquiry may be called into question in a lawsuit.
- Employees have a reasonable expectation of privacy with regard to their desks, bags, lockers etc. Your written and non-written office policies can expand or contract the employees’ expectation of privacy in these areas.
- Drug testing is a highly contentious are of intrusion into an employee’s privacy. You should design a drug testing program only if warranted to protect your interests, and to function efficiently to meet your needs.
- You have a right to collect information relevant and necessary to the safe and efficient operation of your business. You may electronically monitor your employees as long as there is not a statute that expressly prohibits the means of surveillance used. Here, your legitimate interest in determining the employees' effectiveness in their jobs should be balanced against the seriousness of the intrusion on the employees' privacy.