Pauline T. Kim, Employee Privacy and Speech: Pushing the Boundaries of the Modern Employment Relationship
Comment by: Anne T. McKenna
Workshop draft abstract:
Employee privacy and speech have always been contested terrain. Employees have asserted their rights to keep certain matters private, or to speak without fear of retaliation. Employers have argued that intrusions on employees’ privacy or restrictions on their speech are justified by legitimate business interests and their need to manage the workplace. When it comes to privacy, the law strikes a rough accommodation between these competing interests by distinguishing between personal life and work life. Aspects of an employee’s personal life are more likely to be protected against employer scrutiny or retaliation. Conversely, the more closely an employee’s activities are connected to her job duties or the workplace, the less likely they are to be protected. The doctrine governing employee speech exhibits a different pattern. Although off-duty speech may be incidentally protected as an aspect of off-duty conduct, the law’s particular focus is on protecting certain types of socially valued speech, such as collective speech about working conditions or speech as private citizens that contributes to public debate. Despite the differing doctrinal frameworks, these two employee interests—privacy and speech—are closely interrelated, and work together to protect not only individual dignitary interests but broader social concerns as well.
Recent changes in the nature of work and changes in technology have significantly shifted the balance between employees’ privacy interests and employers’ managerial concerns. Together, these changes are raising the incentives and lowering the costs for employers to intrude on areas employees have claimed are private. In addition, these changes are increasingly blurring the line between home and work, between off-duty and on-duty activities. In the face of these changes, the traditional doctrinal frameworks used to analyze employee privacy claims are becoming obsolete because they rely on the existence of established social norms of privacy and on drawing a distinction between personal and work life. The net effect of all these developments is that the traditional doctrinal forms are increasingly inadequate to delineate the boundaries of employees’ personal activities that should be free from employer scrutiny. This development in turn, has left employee speech rights more vulnerable. Current forms of regulation of employee privacy, which typically rely on after-the-fact challenges by individual plaintiffs (e.g. tort or constitutional claims for invasion or privacy) are unlikely to be successful in addressing emerging privacy challenges in the workplace. In the final section, I review alternative types of regulatory responses that might be used to address employee privacy concerns, and briefly discuss their advantages and limitations.