Notice, Consent, and Non-Consent: Employee Privacy in the Restatement

Abstract

Privacy claims necessarily entail two determinations. First, the domains protected by privacy must be identified. What spaces, or thoughts, or data are legally protected as “private”? Second, what does it mean when something is within a domain protected as private? What limitations does that impose on others and to what extent can the privacy holder consent to waive her privacy protections?

Both of these determinations are especially fraught when the issue is employee privacy. Employers have a great deal of control over the domains an employee can legitimately consider to be private. And when a domain is determined to be “private,” employers have many ways to encourage employees to waive any privacy protections.

The American Law Institute recently completed an effort to “restate” the common law of employment. This paper closely examines the Restatement of Employment Law’s treatment of employee privacy. On the domains protected as private, the Restatement confers considerable authority on employers to expand and, more troublingly, to limit employee privacy rights. On the ability of employees to waive their privacy rights, the Restatement provides some new and innovative protections, but fails to emphasize the centrality of consent to the privacy regime.

Keywords: Employment Law, Privacy, Restatement

JEL Classification: K31