Electronic Privacy and Employee Speech
87 Chicago-Kent Law Review 901 (2012)
32 Pages Posted: 2 May 2012 Last revised: 26 Oct 2012
Date Written: April 30, 2012
The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former.
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