DEFENDING FLORIDA EMPLOYERS: EMPLOYEES MAY HAVE PRIVACY RIGHTS IN THE WORKPLACE

Intrusion upon seclusion is a little know common law tort that is generally viewed as archaic to those who know about it. However, the old tort can afford litigants an ability to protect privacy rights while in the workspace. Employers should therefore think about the methods they employ to monitor employees in and out of the workplace before engaging them. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Intrusion upon seclusion is a type of invasion of privacy, which makes it unlawful for one to intrude into another’s private quarters.  Clemen v. Surterra Holdings, Inc., 2024 WL 3785904, at (M.D. Fla. Aug. 13, 2024) (“The common law tort of invasion of privacy encompasses the tort of intrusion upon seclusion, which is “physically or electronically intruding into one’s private quarters.”). Intrusion upon seclusion claims focus on the right of a private person to be free from public gaze. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003) (This “is a tort in which the focus is the right of a private person to be free from public gaze.”). There are three elements to the claim. One must prove (1) a private quarter, (2) into which a physical or electronic intrusion occurs, (3) that is highly offensive to a reasonable person. Stasiak v. Kingswood Co-op, Inc., 2012 WL 527537 (M.D. Fla. Feb. 17, 2012).

A private quarter into which an intrusion occurs is a place that one has a reasonable expectation of privacy. Neeley v. Wells Fargo Fin., Inc., 2012 WL 5949106 (M.D. Fla. Nov. 28, 2012).  A home is a classic example of a private quarter. Paese v. State, 381 So.3d 4 (Fla. 4th DCA 2024) (“[T]he highest reasonable expectation of privacy a person can have” is in the home, which is “the sanctuary of privacy.”); Jackman v. Cebrink-Swartz, 334 So.3d 653 (Fla. 2d DCA 2021) (establishing an intrusion upon seclusion claim when a neighbor placed a camera to see over the plaintiff’s backyard fence). By contrast, one does not enjoy a reasonable expectation of privacy on a public street. Spilfogel v. Fox Broadcasting Co., 433 F. App’x 724 (11th Cir. 2011) (recording of plaintiff’s conversation with police officer on a public street was not an intrusion into “private quarters” for an intrusion upon seclusion claim).

The workplace is not typically considered a private place. Benn v. Fla. East Coast Ry. Co., 1999 WL 816811 (S.D. Fla. July 21, 1999). However, it can be. In La Porte v. State, 512 So. 2d 984, (Fla. 2d DCA 1987), the court found that paid models had a reasonable expectation of privacy while they were changing clothes in a modeling studio. Similarly, in Eby v. Levine, 2020 WL 12182264 (S.D. Fla. Nov. 17, 2020), it was determined that the plaintiff stated a claim for intrusion upon seclusion when the defendant surreptitiously surveilled him in a studio apartment that he used as a workspace instead of the office. However, these two examples are outliers because the facts giving rise to the lawsuits arise from unusual circumstances that would not be typically applicable to most employers.

The third element requires a showing of highly offensive behavior to a reasonable person. The act “must be of such nature as a reasonable man can see might and probably would cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant.” Cason v. Baskin, 155 Fla. 198 (Fla. 1944). An act will satisfy this standard if it is “so outrageous in character, and so extreme in degree that is goes beyond all possible bounds of decency. Ponton v. Scarfone, 468 So. 2d 1009. This high standard may provide employers who inadvertently intrude upon the private quarters of their employees (in a quest to legitimately monitor employees) an escape hatch from liability.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Intrusion
upon seclusion is a little know common law tort that is generally viewed as archaic
to those who know about it. However, the old tort can afford litigants an ability
to protect privacy rights while in the workspace. Employers should therefore think
about the methods they employ to monitor employees in and out of the workplace
before engaging them. The Miami business
litigation attorneys of the Mavrick Law Firm represent businesses and their
owners in breach of contract litigation and related claims of fraud, non-compete agreement
litigation, trade secret
litigation, trademark
infringement litigation, employment
litigation, and other legal disputes in federal and state courts and in arbitration. Intrusion
upon seclusion is a type of invasion of privacy, which makes it unlawful for one
to intrude into another’s private quarters.  Clemen v. Surterra Holdings, Inc., 2024
WL 3785904, at (M.D. Fla. Aug. 13, 2024) (“The common law tort of invasion of
privacy encompasses the tort of intrusion upon seclusion, which is “physically
or electronically intruding into one’s private quarters.”). Intrusion upon
seclusion claims focus on the right of a private person to be free from public
gaze. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003) (This “is
a tort in which the focus is the right of a private person to be free from
public gaze.”). There are three elements to the claim. One must prove (1) a
private quarter, (2) into which a physical or electronic intrusion occurs, (3)
that is highly offensive to a reasonable person. Stasiak v. Kingswood Co-op,
Inc., 2012 WL 527537 (M.D. Fla. Feb. 17, 2012). A
private quarter into which an intrusion occurs is a place that one has a reasonable
expectation of privacy. Neeley v. Wells Fargo Fin., Inc., 2012 WL
5949106 (M.D. Fla. Nov. 28, 2012).  A
home is a classic example of a private quarter. Paese v. State, 381
So.3d 4 (Fla. 4th DCA 2024) (“[T]he highest reasonable expectation of privacy a
person can have” is in the home, which is “the sanctuary of privacy.”); Jackman
v. Cebrink-Swartz, 334 So.3d 653 (Fla. 2d DCA 2021) (establishing an
intrusion upon seclusion claim when a neighbor placed a camera to see over the
plaintiff’s backyard fence). By contrast, one does not enjoy a reasonable expectation
of privacy on a public street. Spilfogel v. Fox Broadcasting Co., 433 F.
App’x 724 (11th Cir. 2011) (recording of plaintiff’s conversation with police
officer on a public street was not an intrusion into “private quarters” for an intrusion
upon seclusion claim).The
workplace is not typically considered a private place. Benn v. Fla. East
Coast Ry. Co., 1999 WL 816811 (S.D. Fla. July 21, 1999). However, it can be.
In La Porte v. State, 512 So. 2d 984, (Fla. 2d DCA 1987), the court
found that paid models had a reasonable expectation of privacy while they were
changing clothes in a modeling studio. Similarly, in Eby v. Levine, 2020
WL 12182264 (S.D. Fla. Nov. 17, 2020), it was determined that the plaintiff stated
a claim for intrusion upon seclusion when the defendant surreptitiously
surveilled him in a studio apartment that he used as a workspace instead of the
office. However, these two examples are outliers because the facts giving rise
to the lawsuits arise from unusual circumstances that would not be typically applicable
to most employers.The
third element requires a showing of highly offensive behavior to a reasonable
person. The act “must be of such nature as a reasonable man can see might and
probably would cause mental distress and injury to anyone possessed of ordinary
feelings and intelligence, situated in like circumstances as the complainant.” Cason
v. Baskin, 155 Fla. 198 (Fla. 1944). An act will satisfy this standard if
it is “so outrageous in character, and so extreme in degree that is goes beyond
all possible bounds of decency. Ponton v. Scarfone, 468 So. 2d 1009.
This high standard may provide employers who inadvertently intrude upon the private
quarters of their employees (in a quest to legitimately monitor employees) an
escape hatch from liability. The
Miami business litigation lawyers
of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca
Raton, and Palm Beach. This article does not serve as a substitute for legal
advice tailored to a particular situation.