The U.S. Supreme Court once again passed up the chance to define the privacy interest employees enjoy in the workplace, but legal experts say the court’s recent ruling in NASA v. Nelson still provides a lesson for employers and workers alike.
To put it simply: if an employer acts reasonably, it’ll likely prevail against a privacy challenge brought by an employee.
“When it comes to federal employees, and to a lesser extent to private employees, [the] court is giving employers a certain amount of leeway in a way that it hadn’t before,” said Jesse M. Jauregui, a partner in the Los Angeles office of Alston & Bird, where he represents management in employment matters.
“Even though the court did not squarely address the issue of the constitutional right to informational privacy, it did in my mind expand the scope of what is allowable and under what circumstances you can go into your employees’ private [information],” he said.
Leonard H. Kesten, a partner in the Boston office of Brody, Hardoon, Perkins & Kesten, where he represents municipalities as well as employees, said the NASA ruling leaves privacy standards in the hands of juries.
“Everything will be litigated,” Kesten said. “It will be up to a factfinder to find what is reasonable.”
Employer asked ‘reasonable questions’
The case before the court involved a background check conducted
by the National Aeronautics and Space Administration on all current and new employees. The National Agency Check with Inquiries (”NACI”) investigation gathers – through records, questionnaires and open-ended questions to references – information that includes employees’ previous drug use, drug counseling or treatment, and mental and financial stability.
NASA contractors working at a laboratory facility owned by NASA challenged the use of the background check, claiming the information gathered in the background checks violated their privacy rights.
But in a unanimous judgment (Justice Elena Kagan did not take part), the Supreme Court upheld the use of the NACI inquiry. In an opinion authored by Justice Samuel Alito, the Court avoided — as it did last year in the case City of Ontario v. Quon — deciding whether a constitutionally-protected informational privacy right exists.
Instead, the opinion assumed a privacy interest but held that the “government’s interests as employer and proprietor in managing its internal operations” made it reasonable for it to ask “reasonable questions [in] an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure.”
Alito noted that the kind of background inquiry in question was commonly used by both public and private employers.
“The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers,” Alito wrote. “[T]he government has an interest in conducting basic employment background checks.
Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable work-force.”
Only Justices Antonin Scalia and Clarence Thomas, in concurrences, doubted the existence of the constitutional right asserted by the workers.
“Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea [but] a federal constitutional right to ‘informational privacy’ does not exist,” Scalia wrote.
Brian D. Hall, an attorney in the Columbus, Ohio, office of Porter Wright and editor of the firm’s blog the Employer Law Report, said the court’s approach allowed it to protect employer’s interests without wading into controversial areas of law.
“I think we know from past Supreme Court decisions that the right to privacy is a slippery issue right now,” Hall said. “One of the reasons the court may have sidestepped it is because of concern [its] comments can be construed in other contexts that are a bit more inflammatory, such has the abortion controversy.”
But Kesten, who represents municipalities as well as employees, said that avoiding the privacy issue leaves workers and employers with unanswered questions.
“We do need guidelines,” Kesten said. “After this ruling, combined with Quon, it would be nice to get some clear guidance so that we know the rules.”
In Quon, the court ruled that a search of employees’ text messages was reasonable, but avoided the information privacy question.
Attorneys on both sides agree that the ruling in NASA leaves enough room for lower courts to interpret it in different ways. That, coupled with varying state-law privacy rules, means the legal landscape is uncertain for workers and employers.
“You will continue to get tests with different factual scenarios, because states [have different standards],” Jauregui said.
The safe bet for employees is to assume that that they do not enjoy an expectation of privacy in their workplace communications, given recent decisions from the Supreme Court as well as in lower courts. For example, the California Court of Appeal recently ruled that an employee’s e-mail to her lawyer contemplating possible legal action against her employer was not protected by the attorney-client privilege because it was sent via the company’s e-mail system.
“Certainly from employees’ prospective, I think it is wise to remember to never use work e-mail for the purpose of communicating with your attorney,” Hall said.
Kesten advises employee clients to apply the “blush test.”
“When you send a communication, I want you to picture that communication up on the wall of a courtroom with the press watching,” Kesten said. “Are you going to blush? Then don’t send it.”
For employers, the best policy is to have a policy. Developing, communicating and enforcing clear rules governing employees’ privacy expectations allows employers to protect themselves.
“They have to make sure that employees know, with respect to their use of the company’s communications equipment, that they do not have an expectation of privacy,” Hall said.