Privacy laws that protect employees at work historically have been considered sparse and virtually toothless. Only employers that engaged in brazen acts of surveillance or intrusion into employees' narrow "zones of privacy" faced liability. While privacy protections have ballooned in the consumer, healthcare, and telecom sectors over the last decade, employee privacy rights largely stood frozen. As a result, businesses paid little attention to workplace privacy compliance obligations. That time has passed.
Like the seemingly benign Trojan Horse in which hid an elite force to attack an unsuspecting enemy, the growing wave of employee privacy laws are far more expansive than they appear on the surface. Indeed, because some of these laws do not even sound like they contain employee privacy protections, they are often ignored. Other privacy laws have "top line" compliance obligations that are easily met, but contain ambiguities and public policy consideration that invite expansive judicial interpretation. One such Trojan Horse privacy law that recently emerged protects employees' social media accounts from employer access.
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