Workplace privacy in US laws and policies

In "Cyberspace and the Law of the Horse," Frank Easterbrook, a judge for the U.S. Court of Appeals for the Seventh Circuit and senior lecturer at the University of Chicago, tells the story of how the school's dean once boasted the school did not offer a course on "The Law of the Horse." As Easterbrook explained: "Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows … (But) any effort to collect these strands into a course on 'The Law of the Horse' is doomed to be shallow and to miss unifying principles."

The danger Easterbrook tried to warn of several decades ago goes beyond semantics and into how any emerging area of law should be defined, understood in principle and applied in practice. Thus, with this caution in mind, one should attempt to elucidate the contours of the diverse set of laws that regulate the information generated by and collected about workers by and at their places of employment.

The law of workplace privacy

At least in the U.S., there is truly no singular or hallmark law of workplace privacy. Instead, privacy protections for workers are mostly granted through the penumbras of an assortment of disparate laws. Indeed, much of the privacy protections that applicants, employees and independent contractors enjoy within their relationships with employers are benefits of the long shadows cast by laws such as the Health Insurance Portability and Accountability Act, Americans with Disabilities Act, and Genetic Information Nondiscrimination Act.