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Medical employers, like other employers, need to be aware that too much monitoring of employees can cause unnecessary stress in the workplace. Moreover, the Minnesota Supreme Court's recent adoption of invasion of privacy as a new cause of action is certain to affect employers.

Giving notice

To protect themselves, medical employers must provide employees with specific notice of any actions that may affect employees' privacy. Employees must be told if their phone calls may be monitored, their desks or lockers searched, or their e-mail read. Even then, employers must do the monitoring for business purposes only, limit it and keep confidential any information discovered.

It is helpful to keep in mind that successful employment relationships are based on communication, courtesy and common sense. Applying those principles to monitoring will limit unnecessary intrusions and reduce the chance of employer liability.

Personal data

At times, an employer may need to solicit private information from a job applicant or a current employee. Some employers run credit or background checks on applicants; others require a physical examination. Employers must explain the need first and then obtain the applicant's written consent to run such a check or require such an exam.

In Minnesota, employers are allowed to require successful job applicants to submit to drug testing, but they first must offer the job and must require all similar candidates to submit to the drug test. If employers need the applicant's or employee's medical records, they must have a legitimate business purpose. For example, if an employee with a disability has requested a reasonable accommodation, the employer may need to review some or all of that employee's medical records. Under Minnesota law, if the employee's or applicant's medical records have an adverse effect on the employment, the employer must notify the employee which records were relied on to make that adverse determination. A request for or a review of medical records is likely to implicate the employer's responsibilities under the Americans with Disabilities Act, the Minnesota Human Rights Act and potentially other state or federal statutes.

Privacy also may be at issue if the employer wishes to release private information to other people. Suppose a nurse in a medical facility requests time off because of a serious illness. His co-workers will need to know about the absence, and they will be concerned for him and ask questions. However, the employer may not reveal that the employee is ill or give any details without his permission. If an employer explains to the ill nurse that his co-workers need to know about the absence and may want to offer their support, he likely will permit it. But however he responds, his wishes must be respected unless there is a legitimate business reason for revealing the information to others - in which case, the employer must explain that the information will be released discreetly and only to those who need to know.

Surveillance How far can an employer go in monitoring employees' telephone calls and email or installing surveillance cameras in locker rooms or restrooms? When employers are dealing with their own property, such as the company phone or computer system, they have broader discretion. If such surveillance is necessary for a reasonable business purpose, employers should explain why the surveillance is necessary. If employees are aware that they are being monitored, their expectation of privacy and the organization's exposure to liability are reduced. In Minnesota, wire communications, such as telephone calls or e-mail messages, can be monitored only if at least one of the parties consents to the monitoring, but some courts have concluded that warning the employee about the monitoring is enough.

Employers sometimes may find it necessary to enter or search an employee's semiprivate spaces, such as desks or lockers. Whether an employer is invading an employee's privacy illegally will depend greatly on the unique circumstances of the situation. One of the most important factors is whether the employer has a legitimate business reason, or probable cause, for searching the space. Another factor is the unique character of the space to be searched. Does the desk or the locker have a lock on it? Is it the employee's individual desk, or is the space shared?

If the employee reasonably can expect privacy in the spaces, the employer should not enter or search those spaces. If employers clearly communicate, preferably in writing, that the space is not private, they can reduce the employees' expectation of privacy. To be on the safe side, it's a good idea to need to search her semiprivate space and ask for her written permission. If she is unwilling to give that permission, and the employer has probable cause to conduct the search, the company may be able to discipline her or terminate her employment for her failure to cooperate. Such judgment calls, however, are difficult to make. Again, communication and common sense usually will guide employers in the right direction.

Personal conduct

Privacy issues also can arise when an employer attempts to monitor and regulate personal conduct. For example, some employers have wished to prohibit their employees from using any tobacco, drugs or alcohol - even when the employee is not at work. That likely would constitute an invasion of privacy. In Minnesota, it is illegal for an employer to monitor or otherwise discriminate against an employee for use of lawful consumable products, such as tobacco and alcohol, when the employee is not on work time or on the work premises.

A more difficult dilemma arises from forbidding dating between co-workers or between management and nonmanagement employees. Employers may believe that such restrictions are necessary to prevent sexual harassment in the workplace and to avoid liability, but in trying to regulate nonwork activity, the restrictions are likely to constitute an impermissible invasion of the employee's privacy. However, an employer is allowed to make reasonable demands on activity and conduct during work time and on the work premises.

The issue of privacy in the area of sexual harassment can be tricky. Employees who are sexually harassed at work can argue that the harasser impermissibly invaded their privacy either by asking sexually explicit and personal questions or by physically invading private space. To avoid liability, the employer needs adequate harassment policies and personnel training.

If harassment allegations are made, an investigation should follow and be conducted in such a way that the privacy of all employees, including the accuser and the accused, is protected. Any information uncovered during the investigation should be revealed only to the people who have a legitimate business need to know. Nevertheless, when interviewing employees during the investigation, the employer should not guarantee that the information will be kept confidential. Most likely, it will have to be shared with business associates and, in the event of a lawsuit, with an attorney.

Overall, medical employers are more likely to avoid trouble in the area of privacy by keeping in mind the three basic guidelines for successful employee relations: communication, courtesy and common sense. Any employer about to embark on an action that could invade employees' privacy should consider the ramifications. If the action makes employers feel uneasy, they probably need to give it careful and thorough consideration before going forward.

Susan E. Oliphant J.D., a partner with Minneapolis-based Maslon Edelman Borman & Brand LLP, conducts employment litigation. Melissa M. Weldon J.D., is a litigation associate and member of the firm's labor and employment team.