Privacy at Work

After 215 years, the Constitution is so firmly embedded in our national consciousness that it's difficult to imagine that we can still be on American soil and not enjoy the benefits of its protective principles. And yet, every single day, tens of millions of us spend hours in offices, cubicles, kitchens, laundry rooms, and work sites where the U.S. Constitution is completely inapplicable. It is, essentially, the equivalent of traveling each day to a foreign nation.

This somewhat disturbing state of affairs stems from the fact that when the Constitution was drafted, the concept of workplace privacy was even more remote than personal privacy. The purpose of the U.S. Constitution, after all, was to create a framework for government that would, among other things, protect the nation's citizens from the potentially destructive power of a central government. There was little reason for the framers to consider the relationship between private employment and personal rights. At the time, the number of private employers was relatively low, few had more than a handful of employees, and concern over working conditions (let alone privacy) was minimal.

And in fact, the framers of the Constitution would undoubtedly have been reluctant to interfere in the relationship between employer and employee because that was precisely the type of governmental interference against which they were revolting. So reluctant, in fact, were the framers to interfere with private relationships that they deferred action on the issue of slavery, a decision that would later cost the country dearly.

Over the years, employees have periodically raised constitutional claims in disputes with their employers, and courts at every level have routinely held that the U.S. Constitution simply does not apply to private employers. As we'll see throughout this book, what rights private employees do enjoy stem from state and federal statutes, and in some limited circumstances, provisions of various state constitutions (which can provide greater protections than the federal constitution).

The availability of constitutional protections is one area in which government employees have a modest advantage over private employees. If your employer is a government body, agency, or department, then generally speaking, the protections of the Constitution (and particularly the Fourth Amendment, which prohibits unreasonable search and seizure) do apply to you.

The freedom private employers enjoy from the provisions of the U.S. Constitution gives them tremendous latitude in how they handle their employees. The latitude is not absolute: Congress has recognized that employers sometimes treat certain employees unfairly, and has passed legislation designed to curb some of the worst abuses (i.e., the Fair Labor Standards Act, the Civil Rights Act, the Americans with Disabilities Act, and the Employee Polygraph Protection Act). Nonetheless, the freedom private employers enjoy from the boundaries imposed by the Fourth Amendment has allowed them to engage in extensive surveillance of their employees. With daunting regularity, technology is expanding the scope of that surveillance, and there is no end in sight.