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Publication Date

2008

Abstract

This Article offers a unique and timely treatment of the dual, yet divergent, rise in employer regulation of off-duty behavior and employee privacy law. Recent trends show that technology has expanded the supervisory tools available to employers and made the workplace a more fluid concept; in addition, financial pressures have grown from expensive employee benefits and other business costs. As a result, employers have been increasingly interested in reaching beyond their office walls to gather pertinent information for making personnel decisions. On the other hand, a movement is building in law to segregate off-duty activity from employer purview, particularly in light of increasingly common problems involving technology abuse, privacy invasion, expanded government surveillance programs, and identity theft. As the Article posits, respective fears of chain-smoking telecommuters or prying bosses are understandable,but the reality is actually more mundane. Good employees tend to be responsible; successful employers tend to be sensible. Therefore, the current system of employer discretion, as modified by the market, in addition to existing tort and employment laws (e.g., intrusion, non-discrimination)are all preferable to open-ended privacy law-despite the admirable goals of the movement for worker dignity off-duty regulation. No solution is perfect, however, and this author would certainly condemn any employer abuses that may occur. Yet, legal fiat not only unduly restricts employer discretion, it also isolates employees behind an unyielding wall of rights, thereby further jeopardizing employee interests in benefits and other consideration obtained in exchange.

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