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EMPLOYEES’ RIGHT TO PRIVACY IN WASHINGTON
By Nick Beermann
I.
Introduction
Employers may have a need to inquire into their employees’ personal lives for such purposes as
determining fitness for a particular position, ensuring productivity and preventing illegal activity
in the workplace. Such inquiries often raise legal issues for public sector employees in
Washington in light of state and federal constitutional provisions that grant citizens a right to
privacy. Private employers use of employees’ private information, however, also raises legal
issues that private and public employers alike should be aware of. As one Washington court
recently stated, “As to privacy of employees, employer-employee relations tend to be heavily
regulated . . ..”1
The following article discusses these issues and provides a broad outline for employers to refer
to when dealing with employee privacy.
A.
The Constitutional Right to Privacy
As creatures of statute, public employers are state actors subject to the constraints and
protections of the State and Federal Constitutions. Article I, section 7 of the Washington
Constitution provides that “No person shall be disturbed in his private affairs, or his home
invaded, without authority of law.” The Fourth Amendment to the United States Constitution
similarly protects the "right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . ..” Both rules apply only to governmental
entity intrusion into individual privacy and do not apply to private employers. Courts have
interpreted Washington’s Constitution as providing greater protection to citizens than the Fourth
Amendment, but public employers should be aware of both.
Washington courts have interpreted Article I, section 7 of the Washington State Constitution as
providing two rights of privacy to public employees: the right to nondisclosure of intimate
personal information and the right to personal autonomy. The first of these rights (nondisclosure
of intimate persona