Balancing Employer Business Interests and Employee Privacy Interests: A Survey of Kansas Intrusion on Seclusion Cases in the Employment Context

Abstract

In recent decades, employers are using more sophisticated, high tech methods to monitor employee behavior. Employers test employees for AIDS and drug use; videotape them; electronically monitor their computer use, internet use, emails, text messages, and phone calls; and track their movements with Global Positioning Surveillance technology. While employers clearly have the right to monitor employee behavior, that right is not limitless. The tort of intrusion on seclusion creates one such limit.The extent to which the intrusion on seclusion tort protects employee privacy under Kansas law is somewhat of a mystery because the Kansas Supreme Court has not analyzed an employee’s intrusion on seclusion claim against an employer. The Kansas Supreme Court’s analysis of intrusion on seclusion claims in the creditor debtor context does, however, suggest how the Court would approach an intrusion on seclusion claim in the employment context. Numerous federal court cases analyzing intrusion on seclusion claims under Kansas law in the employment context also serve as a guide to predicting how Kansas courts will rule on these claims. This Article synthesizes current intrusion on seclusion law in Kansas and explains how it applies to the employment context. It also collects and reviews existing federal cases analyzing intrusion on seclusion claims in the employment context under Kansas law. It concludes that Kansas courts should approach an intrusion on seclusion claim in the employment context as they have approached these claims in the creditor-debtor context and balance the respective rights and interests of the parties. To determine whether an employer has invaded an employee’s privacy, courts must determine whether the employer’s legitimate business interest in the information outweighs the employee’s privacy interest.