On-duty and Off-duty: Employee Right to Privacy and Employer’s Right to Control in the Private Sector

Abstract

The changing legal landscape of the right of the employer to control and monitor employee behavior is examined. Two distinct areas are defined: behavioral monitoring and behavioral restrictions. Relevant statutory laws and the developing common law are discussed. We also examine potential employee reactions to such policies by evaluating the reactions of graduate students to six employer policies including weight restrictions, grooming requirements, use of GPS locators, drug testing, ban on off-duty smoking, and email and internet monitoring. Students responded to these policies by determining the reasonable interest of the employer in the behaviors being monitored or controlled and the manner in which policies were implemented. Their comments suggest that employees may accept some level of monitoring or behavioral restrictions if the employer can make a convincing social account of the need for a policy. Additionally, the policy must be clearly communicated and properly implemented. However, restrictions on off-duty behavior were typically poorly received with the exception of illegal drug use.