Privacy From Employers

 by Michael C. Dorf

My latest Verdict column assesses the apparent fact that the Supreme Court marshal's investigation of the leak of the Dobbs draft has sought mobile phone records from law clerks. Because the marshal is a government actor, the Constitution bears on the means her investigators may employ. In the column, I explain why a government employer could obtain these records even without a warrant or probable cause, so long as the scope of information sought were limited to phone numbers called, but that it's possible that the investigators seek more information, which could render such a search invalid under the Fourth Amendment. My main takeaway is that even if the investigators' request for mobile phone records is lawful, it is unwise, unfair, and counterproductive if the goal is to restore trust among the people working at the Supreme Court.

Here I want to add a brief point about privacy for people who work outside the government. Because the Constitution applies only to the government, they are not protected against surveillance by the Fourth Amendment or any other constitutional provision. Still, various federal, state, and local laws limit the ability of employers to demand private information from employees or, where they have access to such private information, to distribute it more widely.

However, these protections are hardly comprehensive. Employers can and many do monitor just about every aspect of an employee's life while the employee is at work or using employer property. In a world in which the line between the office and the outside world was blurring even before the pandemic swelled the ranks of white-collar telecommuters, that caveat subjects some of the most intimate details of a person's life to potential employer surveillance.

Moreover, even where federal, state, or local law forbids some form of employer snooping, the prevalence of employment-at-will can make legal protection tenuous. True, there are pockets of the U.S. economy where workers have leverage that might protect them from employer surveillance. However, only about ten percent of the workforce overall are union members. And while some non-unionized workers have due process protection through tenure, they too represent a relatively small fraction of the workforce: federal judges; about one in five college and university professors; and (by far the largest category) public school teachers in most states--although for over a decade now teacher tenure has been under attack.

In any event, most U.S. workers are employees at will, meaning that they can be fired for no good reason--so long as they are not fired for a specifically forbidden reason, like race or sex discrimination. Yet, as Professor Cynthia Estlund explained in an important 1996 law review article, the background norm of employment-at-will undermines legal limits on wrongful discharge. An employer can rebut a charge of discriminatory discharge by claiming to have fired an employee for any other reason at all, even if it is not a very good one. Legal protections for privacy can likewise be undermined by the background at-will regime.

If you know your boss has the power to fire you on a whim or even to give you a lukewarm performance review, you will feel pressure to waive whatever rights you have against disclosure of embarrassing or otherwise private information and "voluntarily" comply with a "request" for documents, data, etc. Yes, it might be illegal for an employer to retaliate against an employee who refuses to do so, but good luck proving that the employer acted with a retaliatory motive--and good luck finding a new job in the same line of work after suing your former employer.

This little thought experiment leads me to conclude that my column identified and objected to the tip of a gigantic iceberg. Whether or not legal, it's pretty outrageous that anybody would think the Supreme Court marshal's investigators should have access to the mobile phone records of all 37 law clerks. It's equally outrageous that employers avail themselves of that kind of access to the private lives of millions of American workers in other sectors of the economy.