Promos, But No Privacy

Litigation Value: Unknown

Last night's episode of The Office gave the characters their first glimpse into their upcoming documentary. Surprisingly, this seems to be the first time any of them contemplated that the world (literally) will be able to see their personal and professional antics that have entertained all of us for the past 10 years (well, mildly entertained us for the past three or four).

Pam sums up her beliefs when she asks, "So, we haven't had privacy in 10 years?" Putting aside the issue of whether they all consented to the documentary producers in the first place (and what that consent included), workplace privacy is a hot-button issue given the widespread use of technology at work. Although there are no broad federal workplace privacy statutes, the common law and various state statutes affect how employers should monitor their employees.

To avoid common law claims (e.g., tortious invasion of privacy), employers should widely disseminate how they are monitoring their employees (video, e-mail, phone, etc.) to ensure that staffers don't have an objectively reasonable expectation of privacy. See, e.g., Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F2d 187, 201 (2d Cir 1984) (employees warned of potential search lessened employee's privacy expectations). The individual states also have statutes that require compliance. Some of those statutes are more commonsensical than others. Compare California Labor Code § 435(a) ("No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes unless authorized by court order") with Delaware Code § 705(b) ("No employer . . . shall monitor or otherwise intercept any telephone conversation or transmission, electronic mail or...