Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer's domain at the specific workplace. This is, in part, because for most employees workplace privacy is not a central concern and the justifications for broad protections of workplace privacy are often quite weak. While conceding the workplace as the employer's domain, I also advocate creating a strict barrier to employer encroachments outside of the workplace so that employers would not be able to interfere with the off-work activity of their employees absent some compelling justification. This would include circumstances in which employers provide employees with computers or other gadgets that employees are permitted to use outside of the workplace.
GW Paper Series
GWU Law School Public Law Research Paper No. 222; GWU Legal Studies Research Paper No. 222
Michael Selmi, Privacy for the Working Class: Public Work and Private Lives, 66 La. L. Rev. 1035 (2006).