Texas Privacy in the Workplace | GBE&W

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Texas Privacy in the Workplace | GBE&W

Texas Privacy in the Workplace
Common Law Invasion of Privacy

Texas employers should know that Texas courts recognize the following three of the four common law invasion of privacy claims:

Intrusion upon the solitude or seclusion of another.
Public disclosure of private facts.
Appropriation of name or likeness.
Although several lower courts and federal courts interpreting Texas law have recognized the claim false light invasion of privacy, the Texas Supreme Court has declined to recognize the claim.

Intrusion Upon Seclusion

Intrusion into the seclusion of another is a common law action for the deliberate invasion of a person’s privacy by another. Generally, to bring a successful intrusion claim, an aggrieved party (plaintiff) must establish the following:

  • The defendant, without authorization, intentionally invaded the private affairs of the plaintiff.
  • The invasion was offensive to a reasonable person.
  • The intrusion involved a private matter.
  • The intrusion caused damages to the plaintiff (mental anguish or suffering).

In the employment context, intrusion into seclusion can occur in various situations, such as drug and alcohol testing, employee monitoring, and information related to determine eligibility for employment. However, intrusion claims regarding employee monitoring are the most prevalent. In addressing employee-monitoring claims, the courts have attempted to balance the employee’s reasonable expectation of privacy against the employer’s business interest in monitoring.
In regards to an employee’s expectation of privacy, the courts have generally held that an employee has no reasonable expectation of privacy where the employer put the employee on notice of the monitoring or the employee has consented to the monitoring. In addition, courts have held that employers have a strong business interest in monitoring employees. These interests can include:

  • Measuring employee productivity.
  • Maintaining confidentiality.
  • Protecting trade secrets.
  • Preventing inappropriate and unprofessional conduct.
  • Preventing misuse of the employer’s property.

Public Disclosure of Private Facts

Publication of private facts is generally defined as the publication of matters concerning the private life of another that would be highly offensive to a reasonable person and is not of legitimate concern to the public. The basic argument behind these claims is that the disclosure of certain embarrassing facts are so outrageous and un-newsworthy that it violates the public’s sense of decency.

To bring a successful claim for public disclosure of private facts, a person must generally establish that the defendant disclosed a private fact. Private facts are intimate details of a person’s private life that are not generally known. Private facts may include things such as:

  • Social Security numbers.
  • Medical conditions or health status.
  • Sexual activity or history.
  • Economic or financial status.

Employees are protected from public disclosures by employers about their personal life. Public disclosure of private facts may occur when an employer is searching for background information about an employee or applicant, learns embarrassing information, and then publishes that information by advising people who do not have a need to know. The truth of the information disclosed is irrelevant. Even disclosure of private information about an employee to co-workers who do not need to know could lead to liability. Disclosures of criminal convictions that are public record are not a basis for a claim.

Appropriation of Name or Likeness

Appropriation of name or likeness invasion of privacy occurs when an individual’s name or likeness is used to promote a product or service without the individual’s consent. To establish a claim for misappropriation of name or likeness, a plaintiff must generally establish the following:

  • The defendant used an aspect of the plaintiff’s identity that is protected by law (name or likeness).
  • The defendant used the name, likeness, or other personal attributes for commercial or other exploitative purposes.
  • The plaintiff did not provide permission for the offending use.

In the employment context, misappropriation of an employee’s name or likeness may occur when an employer uses an employee’s name or likeness in a company’s marketing materials without the employee’s prior consent.

Social Security Numbers

Tex. Bus. & Com. Code § 501.001 generally prohibits an employer from printing employee Social Security numbers (SSN) on any materials sent by mail, which includes paychecks sent by mail. There is a “safe harbor” for printing the SSN on paychecks if both of the following are true:

  1. The practice was in place prior to January 1, 2005.
  2. The employer makes an annual disclosure to the employee that upon the employee’s written request, the SSN will no longer be included on the paychecks.

An exception also exists for the mailing of Internal Revenue Service (IRS) and Texas Workforce Commission (TWC) related forms, such as W-2s and quarterly wage reports, and any other official government forms that require the employer to include SSNs.

Unlawful Interception, Use, or Disclosure of Wire, Oral or Electronic Communications

Tex. Pen. Code § 16.02 prohibits intentionally intercepting, endeavoring to intercept, or procuring another person to intercept a wire, oral, or electronic communication. The law also prohibits the disclosure or use of the contents of the communication. The law allows interception under certain circumstances, including interception in the ordinary course of business and interception with the prior consent of one of the parties to the communication. Violation of the law is a felony.

Fraudulent Use or Possession of Identifying Information

Tex. Pen. Code § 32.51 makes it a felony for a person to obtain, possess, transfer, or use another person’s identifying information without the other person’s consent with intent to harm or defraud the other person. Identifying information is any information that identifies an individual, including a person’s:

  • Name and Social Security number (SSN).
  • Date of birth.
  • Government-issued identification number.
  • Biometric data (i.e., fingerprints, voice prints, and retina or iris images).
  • Electronic identification number, address, routing code, or financial institution account number.
  • Telecommunication identifying information or access device.