Monitoring Employees' Off-Duty Conduct
Should you keep track of what your employees do when they're not on the job?
Today, employers have the technological means, and occasionally the inclination, to find out what workers are doing on their own time. However, your right to monitor your employees' conduct off the job -- and make decisions based on that conduct -- is limited. If your investigation or questions invade an employee's right to privacy, you might end up in court.
Privacy Law
Employees of government and public entities have a constitutional right to privacy that protects them from most employer monitoring of, or even inquiring about, their off-the-job conduct. For public employers, then, monitoring is largely off-limits.
In the private sector, a number of laws prohibit employers from intruding into their employees' lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees' off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker's lawful conduct off the job.
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Even in those states that don't provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the "seclusion" of an employee. This means that physical areas in which an employee has a reasonable expectation of privacy are off-limits to employers, unless there is a very good reason to intrude. And an employer is never allowed to physically enter an employee's home without consent (even when searching for allegedly stolen property belonging to the employer).
The same balancing approach often applies to private information. Generally speaking, an employer may not inquire about or otherwise obtain facts about employees' private lives. For example, an employer may not ask an employee about her sex life with her husband.
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