Carpe Diem: Privacy Protection in Employment Act

Abstract

Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent calls for privacy protection to address emerging technologies are to succeed, blueprints for legislation must be provided. This article, thus, contributes to the call for reform by proposing a federal statute to protect employees’ privacy from technological monitoring by their employers.

The article surveys potential sources of law and legislation that, while inadequate on their own to protect employees’ privacy, serve as a foundation for the proposed legislation. While each of these sources has been reviewed by scholars in the past, consideration of all as a potential source upon which to model legislation is a notable strength underlying the proposed statute. The basic framework of the proposed statute is to provide protection based on the degree of intrusiveness of the privacy invasion. The framework provides baseline protection for on-duty actions, intermediate protection for on-duty communications and use of employer communications technology, and the greatest protection for off-duty behavior. Other notable features of the proposal include the comprehensive nature of the proposal, in comparison to most prior scholarly proposals; the flexibility the statute provides to employers to engage in necessary monitoring; provisions designed to foster employee involvement in implementing and enforcing workplace technological monitoring policies; and the involvement of a government agency, the Department of Labor, in educating interested parties about employee privacy issues and in enforcing the statute. While passage of legislation protecting employees’ privacy from employer technological monitoring may face an uphill battle, it is possible and should be done.

Keywords: employment, privacy, legislation

JEL Classification: J29, J59, K39, K31