Tension often exists between an employer's right to control and monitor an employee's activities and the employee's right to be free from unreasonable privacy invasion. While employers contend that they must protect themselves from loss, waste, and liability, employees assert that they are entitled to the dignity of their privacy at all times. While a number of different and state laws address these issues, this article summarizes the four basic state law tort remedies implicated by privacy concerns in the workplace:

• Intrusion,
• Appropriation,
• False Light, and
• Public Disclosure of Private Facts.

Intrusion

The tort of intrusion occurs when an employer intentionally intrudes, physically or otherwise, into an employee's private affairs, where that intrusion would be highly offensive to a reasonable person.

Employees have successfully prevailed on intrusion claims in a number of circumstances, including the following:

• An employer searched an employee's personal desk and file cabinets to collect evidence to substantiate charges of wrongdoing.
• A security guard searched a terminated employee's person while escorting him from the workplace.
• An employer monitored an employee's personal phone calls without the employee's consent.
• An employer asked a number of very personal questions on a preemployment screening test.

Appropriation

The tort of appropriation most often arises where an employer continues to use a former employee's picture or name after that employee has left the workplace. If the former employee can establish that he or she did not consent, and if he or she can show that the employer was using the image or name for its benefit, the employee will likely prevail in an appropriation action.

False Light

Some states allow the tort of false light to protect employees from being falsely portrayed to the public by an employer in a way that would be highly objectionable to a reasonable person. These claims most often arise in the context of a termination. Employees in states that recognize false light claims have prevailed against their employers in situations where the former employer has knowingly misrepresented the former employee's views or conduct. Often, employees file these claims in conjunction with defamation claims.

Public Disclosure of Private Facts

Although this area of the law is becoming increasingly regulated by statute, the common law tort of public disclosure of private facts still exists. To establish this type of claim, an employee must show that an employer's disclosure of private facts about him or her would have been highly offensive to a reasonable person. He or she must also prove that the information was not of legitimate public concern. Employees have prevailed against employers under this theory where, for example, the employer widely disseminated information about the employee's private medical condition.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.