HumenhukCIPP/US Study Guide
Chapter 12: Workplace Privacy

State Contract, Tort, and Statutory Protections

Reviewed by Victor Humenhuk. Published . Reviewed .

Contracts (especially collective bargaining agreements) can create enforceable privacy obligations. Three common-law torts - intrusion upon seclusion, publicity given to private life, and defamation - can apply, but only on egregious facts. State statutes add a 'patchwork of near bewildering complexity.'

How this supports CIPP/US study

Use this lesson to identify the disclosure, workplace or cross-border rule that changes the result in a fact pattern. Continue with the CIPP/US study plan.

U.S. law treats the employment relationship as fundamentally a matter of contract. A contract can alter default rules, and if an employer promises to honor privacy, breaking that promise can be an enforceable breach. The most important such contracts are Collective bargaining agreement|collective bargaining agreements, which often limit drug testing and monitoring.

Common-law privacy torts in employment
TortCore testEmployment example
Intrusion upon seclusionIntentional intrusion on solitude/private affairs that is highly offensive to a reasonable personCamera or peephole in a bathroom or changing room; secret wiretaps
Publicity given to private lifeBroad dissemination of a private matter that is highly offensive and not of legitimate public concernDisseminating an employee's private information (courts are cautious; First Amendment may defend)
DefamationFalse, reputation-harming communicationFalse drug-test report; factually incorrect reference to a future employer
Defeating a wiretap/intrusion claim

Employers can often defeat an intrusion or wiretap claim by an announced policy that company computers are employer-owned and subject to monitoring.

Legislatures, not courts

Per Privacy in Employment Law: 'If privacy is to be protected by law, the task falls largely to the legislatures' - hence the bewildering state-by-state statutory patchwork (e.g., laws barring employers from demanding social-network passwords).

Key terms - quick answers

What is “Collective bargaining agreement”?
A union-negotiated contract that often protects employee privacy, e.g., limiting drug testing and workplace monitoring; the most important contracts for employee privacy.
What is “Intrusion upon seclusion”?
A tort imposing liability for intentionally intruding on another's solitude or private affairs in a way highly offensive to a reasonable person (e.g., a camera in a restroom).
What is “Publicity given to private life”?
A tort for publicizing a private matter that would be highly offensive to a reasonable person and is not of legitimate public concern; requires relatively broad dissemination.
What is “Defamation”?
A tort based on a false, reputation-harming statement, e.g., a false drug-test report or a factually incorrect employer reference.

Sources and study method

This independent lesson uses active recall, spaced retrieval and scenario practice. Read the full study method.