Privacy Rights and Public Employment
KeywordsPublic Employee United States Constitution Reasonable Expectation Private Employer Fourth Amendment
Individuals employed by federal or state governments are protected by the United States Constitution, state constitutions, as well as federal and state statutes. The Bill of Rights and the Fourteenth Amendment provide public employees with an avenue of redress that would not be available to private employees. The United States Constitution restricts what governments can do, including protections for free speech and from unreasonable searches and seizures. Therefore, governments are prohibited from restricting speech and from searching employees in ways that private employers are not. However, the government typically maintains a level of oversight and control of its employees that is much more extensive than that of a private employer, and the courts have acknowledged this.
Although the term “privacy” is not used in the United States Constitution, the United States Supreme Court has recognized the existence of a right to privacy in the Griswold v. Connecticut (1965) (381 U.S. 479) and subsequent cases. Justice Douglas, writing for the majority of the Court cited the “penumbra of specific guarantees of the Bill of Rights” including the right of association contained in the First Amendment, as well as the Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner. Perhaps most directly on point is the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” These privacy rights extend to public employees with some limitations.
The Fourth Amendment protects an employee’s “reasonable expectation of privacy” under the circumstances, and any government search must be reasonable in both inception and scope (O’Connor v. Ortega, 480 U.S. 709, 723 (1987)). In other words, the purpose must be sound and defined in such a way that it limits the searches scope. Although there is some ambiguity, courts have found the government’s interest in efficiency precludes requiring warrants or findings of probable cause for workplace searches of public employees’ desks, files, and other work-related spaces. In this regard, searches may be reasonable even when they’re not based on suspicion that any particular employee has violated a workplace rule.
In O’Connor v. Ortega (1987), the Supreme Court explained that the Fourth Amendment applies to “[s]earches and seizures by government employers or supervisors of the private property of their employees” (Id. at 715). However, the Court concluded, some privacy expectations held by public employees may be unreasonable given the “operational realities of the workplace” (Id. at 717). The operational realities test has become the measure by which courts gauge whether public employees have an expectation of privacy that is deemed reasonable.
O’Connor involved an administrative search that led to the dismissal of the Chief of Professional Education at the Napa State Hospital, Dr. Mango Ortega. The Ninth Circuit Court of Appeals held that “Dr. Ortega had a reasonable expectation of privacy in his office” and that the hospital was liable for damages resulting from the unlawful search. The Supreme Court granted certiorari and reversed the Ninth Circuit.
Chief Justice William Rehnquist, joined by Justices Sandra Day O’Connor, Byron White, and Lewis Powell, held that the determinations of whether public employees have a reasonable expectation of privacy must be made on a case-by-case basis since working conditions can vary greatly from one public employee to the next and the analysis is therefore always fact intensive. The plurality found that Dr. Ortega had a reasonable expectation of privacy in some of the areas searched, including his desk and file cabinets. However, the next question became whether the search was reasonable in its inception and in its scope. Because there was a factual dispute regarding the justification for the search, the case was remanded to the district court.
O’Connor stands for the principle that “individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” However, the constitutionality of administrative (i.e., non-law enforcement) searches depends on two factors. First, whether or not the employee has a reasonable expectation of privacy in the circumstances involved. This threshold issue is determined by looking at whether the employee actually had an expectation of privacy or whether the expectation is one that society is prepared to accept as reasonable. Second, even if the employee did have such an expectation, an administrative search would be constitutionally permissible if the government could show that “both the inception and the scope of the intrusion … [were] reasonable.”
The Fourth Amendment protection for a public employee’s business office is to be assessed “on a case-by-case basis,” in light of whether the office is “so open to fellow employees or the public that no expectation of privacy is reasonable.” Little guidance is provided to determine how open “so open” must be.
The monitoring of public employees’ email, tweets, text messages, and similar communications is also raising a number of Fourth Amendment issues that will undoubtedly continue to be litigated in the future. Email is a relatively open communication channel so it may be difficult to demonstrate a reasonable expectation of privacy in its use at work. Voice mail is more similar to a telephone conversation, in which one does have a reasonable expectation of privacy. However, an employer may be able to reduce his expectation by not providing private passwords for all employees or by informing employees that voice mail and telephone conversations will be monitored for business purposes (e.g., efficient and appropriate communication with customers). Nevertheless, Fourth Amendment protection maybe applied to communications that are clearly private, such as between spouses about family matters.
In City of Ontario v. Quon (2010), the city monitored the use of a government-issued pager by the police officer and subsequently disciplined him based on the number and content of the messages he sent and received (560 U.S. 746). The Supreme Court applied the reasonableness standard used by the plurality in Ortega and upheld the constitutionality of the City’s action. The court reasoned that the search was reasonable in its inception and scope because it was partly intended to determine the effectiveness of the police department policies regarding pagers.
Drug testing also presents Fourth Amendment privacy issues. Administrative (noncriminal) drug testing is reasonable for personnel in law enforcement, public safety, or other positions where, on balance, the employees have a reduced expectation of privacy and the government and public interest outweigh their privacy interest (National Treasury employees Union v. Von Raab, 489 U.S. 656 (1989)).
In National Treasury Employees Union v. Von Raab (1989), the Supreme Court upheld a United States customs service program for urinalysis drug testing of an employee seeking transfer or promotion to positions involving the use of firearms for the interdiction of drugs. Much of the legal action in this area has centered on what constitutes a special government need sufficient to override public employees’ and applicants’ Fourth Amendment privacy rights. The courts have held that certain types of positions create a “special need” which justifies random drug testing of employees in those positions. In addition, positions that are sensitive with respect to government security and law enforcement, such as those in which employees are required to handle classified material, or carry firearms, may justify drug testing of the employees without individualized suspicion. Public sector human resource managers would be well advised to check the law regarding drug testing in their federal judicial districts and circuits because what is permissible may continue to vary among the lower courts.
The legalization of marijuana in certain states for medical and recreational uses has complicated the law in this area. Marijuana use is now legal in 23 states and the District of Columbia, with four states – Alaska, Colorado, Oregon, Washington – and the district permitting recreational use. The other 19 states have legalized marijuana use for medical purposes, though their laws vary. In addition, federal and state statutory protections for workers vary considerably. There are federal laws that protect employees, like the Americans with Disabilities Act, as well as a number of relevant state laws that protects employees’ legal, off-duty conduct. Yet all these acts specifically exclude from disability any employee or applicant who’s currently engaging in the illegal use of drugs. Other federal laws compel employers to prohibit the use of marijuana on the job, for example, President Ronald Reagan issued an executive order in 1986 creating a federal drug-free workplace. In addition, the Drug-Free Workplace Act of 1988 requires employers to maintain a no-drugs environment in order to become a federal contractor or receive federal funding. In fact, it is worth noting that no state requires employers to permit employees to be under the influence of marijuana on the job.
In Coats v. Dish Network, the court held the state’s “lawful activities statute,” which generally prohibits employers from firing employees for engaging in lawful activities off the job, applied only to activities lawful under Colorado and federal law (350 P. 3d 849 (Colo. 2015)). The court held that because marijuana is illegal under the federal Controlled Substances Act, its use isn’t lawful – and can remain a valid basis for termination in the state. Although Coats addressed one specific state legal issue triggered by the loosening of marijuana laws, there are a number of yet to be resolved questions about how employers must treat marijuana use under state and federal employment laws, including disability laws.
Civil service or personnel rules and collective bargaining agreements may provide protections that are similar to those provided by statute, such as rules regarding how drug and alcohol test may be administered.
The federal Freedom of Information Act (FOIA) and similar state laws permit the broad disclosure of government records subject to specifically enumerated exceptions. Among the nine categories of records specifically exempted under FOIA from disclosure, section 552(b)(6) is “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Courts have chosen to err on the side of disclosure by placing a high burden upon government agencies that invoke the invasion of privacy exception: First, the agency must demonstrate that the information at issue is in fact included in a personnel, medical, or similar document. In addition, the agency must demonstrate that release of the information would violate “substantial privacy interests” of the person involved. Then, a balancing test is used to weigh the “substantial privacy interest” against the interests of disclosure as mandated by FOIA’s purpose of opening “agency action to the light of public scrutiny,” with the added hurdle that the invasion must be “clearly unwarranted” rather than being merely “unwarranted.” (Sims v. C.I.A., 642 F.2d 562, 572 (D.C. Cir. 1980). Even if information is contained in a personnel, medical, or similar document, the entire document is not conclusively exempt. Plaintiffs can show that only the truly private information should be withheld, by way of redaction. See Dep’t of Air Force v. Rose, 425 U.S. 352, 381–82 (1976)). Lastly, courts are instructed to “tilt in the favor of disclosure” when applying this test because their purpose is to enforce the congressionally determined balance in favor of disclosure (Getman v. NLRB, 450 F.2d 670, 674 n.11 (D.D.C. 1971) (“The legislative history suggests that use of the ‘clearly unwarranted’ standard is the expression of carefully considered congressional policy favoring disclosure.”)).
Employee Recourse for Invasion of Privacy
Employees’ recourse for violation of the right to privacy is through the courts and a lawsuit, either seeking a court order to prohibit the conduct or compensation for any damage the employee may have of the invasion of privacy. Statutory protections also may be enforced through litigation, whereas personnel rule violations may be remedied through appellate procedures contained in civil service rules, with the determination made by an independent commission or board. If the privacy issues are raised in a grievance, it will often be subject to binding determination by neutral arbitrator. Even when a public employee can prove a constitutional violation against his employer, the employer is frequently held not liable based on governmental immunities.