The following is a discussion of the law in Florida on employee surveillance, monitoring, and searches, as it pertains to private-sector employers.
Private employers are not constrained by the Constitutional limits of the Fourth and Fourteenth Amendments. Lebron v. Wilkins, 820 F. Supp. 2d 1273, 1282 (M.D. Fla. 2011) aff’d sub nom. Lebron v. Sec’y, Florida Dep’t of Children & Families, 710 F.3d 1202 (11th Cir. 2013). Thus, private employers generally are free to conduct surveillance of their employees while on-duty, with certain exceptions.
Private employers are constrained by common law privacy principles. An employer can be held liable for the tort of “intrusion upon seclusion” if the plaintiff shows that there was an intentional intrusion, “physical or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.” Benn v. Florida E. Coast Ry. Co., 1999 WL 816811 (S.D. Fla. 1999) (citing Restatement (Second) of Torts, § 652B (1976)). But there is usually no intrusion upon seclusion when a plaintiff is in a public place, such as her workplace. Id.
Video surveillance is generally permitted, except in areas such as restrooms and locker rooms where employees have a reasonable expectation of privacy. See §810.145, Fla. Stat. (prohibiting video voyeurism).
Oral communications are treated differently because of a Florida law, section 934.03, Fla. Stat. Under this law, oral, electronic, and wire communications generally are deemed private, unless both parties consent, and cannot be recorded, absent a specific statutory exception. See Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. 3d DCA 2000) (An oral communication cannot be intercepted and disclosed without the consent of the parties if there is a reasonable expectation of privacy which is recognized by society). See also State v. Smith, 641 So.2d 849, 852 (Fla.1994) (“[F]or an oral conversation to be protected under section 934.03 the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.”).
There is no absolute right of privacy in a party’s office or place of business. See Jatar, 758 So.2d at 1169 (“Society is willing to recognize a reasonable expectation of privacy in conversations conducted in a private home. However, this recognition does not necessarily extend to conversations conducted in a business office.”). For example, no expectation of privacy exists in a conference call held to conduct the business of the company. Cohen Bros., LLC v. ME Corp., S.A., 872 So. 2d 321, 325 (Fla. 3d DCA 2004).
Monitoring employees’ emails or Internet use on an employer’s computer systems generally is permissible, because usually there is no expectation of privacy in such use. See Leor Expl. & Prod. LLC v. Aguiar, No. 09-60136-CIV, 2009 WL 3097207, at *4 (S.D. Fla. Sept. 23, 2009) (employee had no reasonable expectation of privacy in emails transmitted through employer’s server).
Florida case law offers little guidance on whether an employer’s search of an employee’s desk, locker or personal belongings would give rise to an invasion of privacy claim. To be safe, employers should obtain an employee’s consent before initiating such a search. Cases arising in the unemployment context are instructive. Cf. Leedham v. State Unemployment Appeals Com’n, 950 So. 2d 475, 477 (Fla. 4th DCA 2007) (rejecting employee’s assertion that the presence of personal items in his briefcase justified his refusal to allow the employer to inspect the contents of his briefcase, where employer’s policy provided that “each employee agree[d] to allow management to inspect personal property” and that wallets, purses, and briefcases were subject to “inspection.”); and Thomas v. United Parcel Serv., Inc., 864 So. 2d 567 (Fla. 2d DCA 2004) (applicant’s refusal to submit to employer’s search of bag for camera did not constitute misconduct precluding unemployment compensation; employer admitted that it had no policy regarding the search of its employees and their personal effects).
Employees who are gun owners enjoy special protections in Florida. A Florida law, section 790.251, Fla. Stat., gives employees the right to keep a lawfully possessed gun inside their own locked, private vehicle in an employer’s parking lot, and restricts employers from searching vehicles or taking action against employees who exercise their rights under this law. The law does not apply on school property, and does not apply to vehicles owned by the employer or the employer’s landlord.