In July of this year, the Minnesota Supreme Court declared, for the first time, that "[t]he right to privacy exists in the common law of Minnesota, including the causes of action in tort for intrusion upon seclusion, appropriation, and publication of private facts." Before the Court's decision in Lake v. Wal-Mart Stores, Inc., ___ N.W.2d ___, 1998 WL 429904 (Minn.), Minnesota stood with just two other states, North Dakota and Wyoming, as the only jurisdictions that had declined to recognize some form of invasion of privacy as actionable in tort. Wal-Mart represents an expansion of Minnesota's common law in an area that will have a significant impact on the employment relationship.
The Wal-Mart Case
The plaintiffs in Wal-Mart filed their Complaint against the retail store after discovering that a store employee had allegedly developed photographs of the plaintiffs showering together while on vacation in Mexico. The plaintiffs had taken their photographs to a Wal-Mart photo lab, but received notice that one or more of the photos had not been developed because of their "nature." Later, the plaintiffs learned that the photos in question had been developed and were circulating in the community.
The plaintiffs filed suit against Wal-Mart and unidentified employees alleging the four traditional invasion of privacy torts: intrusion upon seclusion, appropriation, publication of private facts, and false light publicity. Relying upon prior Minnesota precedent, the complaint was dismissed for failing to state a claim, and the Minnesota Court of Appeals affirmed.
Identifying the case as presenting a question "of first impression in Minnesota," the Minnesota Supreme Court looked to the Restatement (Second) of Torts to define the causes of action pled in the complaint. Intrusion upon seclusion occurs when one "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person." Appropriation protects an individual's identity against acts by one who "appropriates to his own use or benefit the name or likeness of another." Publication of private facts involves conduct where one "gives publicity to a matter concerning the private life of another if the matter publicized is of a kind that (1) would be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public." Finally, false light publicity occurs when one "gives publicity to a matter concerning another that places the other before the public in a false light if (1) the false light in which the other was placed would be highly offensive to a reasonable person, and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."
To reach its legal conclusion, the Court recognized its inherent power to recognize and abolish common law doctrines in order to reflect advancing social conditions. "As society changes over time," the Court stated, "the common law must also evolve." The Court reviewed the history of the tort of invasion of privacy, from its roots in the English common law theories relating to the protection of property, contractual, and more abstract personal interests. "The right to privacy is an integral part of our humanity," wrote Justice Kathleen Blatz for the majority. Minnesota joins the majority of American jurisdictions which have also recognized some form of these torts, either by statute or common law.
The Court declined to recognize the tort of false light publicity. The Court's decision was based upon a concern that such claims bear too close a similarity to defamation actions, but they are not subject to the procedural and substantive limitations that address the tension between free speech constitutional guarantees and tort law. Here, "the risk of chilling speech is too great to justify protection for this small category of false publication not protected under defamation."
Implications for Employers
The impact of the Wal-Mart case upon employment law in Minnesota might not be immediately apparent from the facts of the case; however, the Court has adopted at least three of the traditional causes of action recognized under the general rubric of "invasion of privacy," claims that are regularly pursued against employers in other jurisdictions where this tort has been recognized for many years.
Each of the privacy torts can arise in the workplace. A claim for misappropriation can arise when an employer uses photographs or names of employees, particularly former employees, in its advertising or marketing. Claims for unreasonable intrusion into an employee's seclusion can arise when an employer engages in unwarranted surveillance during background checks of applicants. An employer might unreasonably publicize private facts about an employee, for example, by failing to maintain the confidentiality of medical records or other personal information, such as information regarding child support obligations or marital status.
The privacy torts are often easier to establish than a defamation claim, a cause of action which is commonly brought by former employees against employers for dissemination of allegedly inaccurate information. For example, a plaintiff can establish misappropriation simply by showing that his or her name or likeness was used without permission; the plaintiff need not demonstrate that the use damaged his or her reputation. Unlike defamation, an intrusion claim does not require any dissemination of the information the employer has obtained. Public disclosure of private facts is actionable even if the facts disclosed are true and therefore, not defamatory.
In considering their new common law obligations, employers should consider their employees' privacy rights as defined by the Minnesota Legislature. Minnesota has a number of statutes that define an employee's expectation of privacy in certain matters. An employer's failure to adhere to these statutory restrictions may establish the basis for a tort claim after Wal-Mart. For example:
- Minnesota's Drug and Alcohol Testing in the Workplace Law contains specific restrictions with respect to the use and disclosure of employer testing results. See Minn. Stat. ' 181.954.
- Minnesota's Access to Consumer Reports Law defines the circumstances in which a "consumer report" may be used for employment purposes, including consideration for hiring or promotion, unless the employer adheres to specific disclosure and usage criteria. See Minn. Stat. ' 13C.02.
- The Minnesota Privacy of Communications Act makes it generally unlawful for any person to intentionally intercept, record, disclose or use any oral or wire communications made by persons who would have an expectation of privacy reasonably justified by the surrounding circumstances. Minn. Stat. ' 626A.01, et seq. This statute potentially impacts an employer's ability to access employee e-mail, voicemail, or telephone calls.
- Minnesota's Privacy for Nursing Mothers in Employment Law obligates employers to make reasonable efforts to ensure the privacy of employees who need to express breast milk for their infant children. Minn. Stat. ' 181.939.
In order to ensure that a potential violation of these laws does not give rise to a tort cause of action as well, employers should review their internal procedures and posted policies to ensure that their personnel practices conform to these laws' requirements. If an employer intends to monitor or record employee telephone use for any purpose, the employer should establish a comprehensive policy defining the circumstances under which monitoring/recording of telephone conversations will occur, ensure appropriate dissemination of the policy, and obtain signed acknowledgment/ consent from affected employees. A similar policy, if necessary, should be established to inform employees of the employer's right of access/review with respect to voicemail, electronic mail, computer databases, and any other form of data storage used in the employer's business. Employees should be specifically advised that employer property, including computer hardware, software, networking systems, telephones, and other communication devices are to be used solely for the conduct of job-related duties. An employee's consent to be bound by these policies should remove any expectation of privacy with respect to personal use of an employer's communication and data storage systems.
Workplace harassment investigations are another area that, in other states at least, have given rise to invasion of privacy claims. An employee may approach a supervisor with a complaint about workplace conduct, but request that the complaint itself remain confidential, or a complainant may believe that his or her identity will remain confidential during the course of an investigation. An employee accused of sexual harassment may establish the same expectations. Once again, a well-drafted anti-harassment policy, informing all employees of their personal responsibility to refrain from such conduct, to report concerns to management, and informing supervisors of their responsibility to investigate, should minimize the risk that employees will establish expectations of privacy in such serious matters.
Background investigations and the maintenance of personnel records are two other areas that have generated invasion of privacy lawsuits in other states that have long-recognized these torts. Both areas often involve employer access to and maintenance of personal information about an employee's life outside of work, and therefore, potentially "private" behavior. Once again, the employer should review its personnel practices with respect to compliance with state and federal laws regarding access to consumer credit reports and criminal background checks. The type of documentation that is placed in an employee's personnel file and medical file should be clear and defined. Access to that file should be appropriately restricted. Every employer should establish a policy with respect to employee reference requests, with due consideration of the risks associated with providing employer references, another area that often gives rise to privacy litigation.
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