Employers should respect reasonable limits and not unnecessarily intrude into the private lives of employees. Intrusion into an employee's privacy creates a suspicious atmosphere, lowers morale and can cause pressure and stress.
Collecting personal information about employees
Employers can collect personal information about employees for valid work purposes only or where directed to by the law. They must protect the privacy of personal information and not disclose or use it for any other purpose.
Employees can ask their employers for access to their personal files and other information their employer has about them. The employer has to either give them access or tell them why they can’t see it, as soon as possible and within 20 working days (or ask for an extension).
Protecting the privacy of job applicants
When hiring staff employers need to make sure they protect the privacy of job applicants. There are questions employers should avoid asking because it could lead to discrimination, eg:
- How old are you?
- Do you have any disabilities?
- Are you married?
- What is your religion?
- Are you pregnant or, are you planning to have children?
- What is your race?
- What political party do you vote for?
- Have you ever had a mental health issue?
An employer may ask if there’s anything that would prevent an employee carrying out the full duties of the job. If an employee isn’t performing well in a job, it’s reasonable to ask if there’s a cause in the employee’s personal life.
Employers should also only contact referees given by an applicant. If the referees are not suitable, employers should ask the applicant if they have someone else. If the hiring employer needs to speak to the applicant’s current employer, then they should tell the applicant and get their agreement.
Tests and checks
Contacting employees outside work
Intruding into private time (eg when an employee is at home or on leave) is not usually reasonable, but at times it can be reasonable for an employer to contact an employee eg:
- in an emergency
- if the employee is on call
- if there’s something important the employee needs to know, eg to enable them to be properly consulted as part of a change process while they are on annual holidays or parental leave
- if an employee hasn’t turned up for work and has not made contact or provided a valid reason
- if an employee is working at home
- if an employee is on sick leave
- if an employee is suspended
- if an employee is on paid garden leave.
An employer can’t generally go into an employee's home without their consent unless allowed by law (eg if the employer is also the landlord and is entering the house legally), even if the employer thinks the employee has stolen their property. In this instance the employer should involve the police.
Monitoring and filming employees during work
Setting up cameras or software to monitor and film your employees during work should only be considered where it’s reasonable, eg if it’s necessary to protect staff from injury, or if theft is a problem. Consider how monitoring and filming staff will affect their morale and productivity (eg staff may feel they are not trusted).
If you think surveillance monitoring is appropriate, use the following approach:
- develop a draft policy setting out why you are doing this, and when you will monitor (eg on a regular basis, only on suspicion that something unusual has happened etc)
- make sure the policy complies with the Employment Relations Act 2000 and the Privacy Act 2020
- communicate the draft policy to your employees
- discuss it with them (and their union if applicable)
- let everyone know why it's necessary.
Occasionally, an employer might monitor an employee without them knowing (eg if they’re suspected of stealing), but secretly filming or monitoring employees needs to be approached very carefully.
Employers don’t have a right to search employees’ personal belongings (including their bag or car etc) unless this has a clear and legal purpose. The type and extent of the search must be consistent with this purpose.
Workplace friendships can help job satisfaction, productivity and job loyalty. If a personal relationship at work or outside work creates a problem such as a conflict of interest or breach of trust then the employer may need to know (eg if a manager enters into a relationship with someone who reports to them, or if a person enters into a relationship with someone who works for a competitor of the employer). The employer may take appropriate steps to minimise the conflict such as moving the employee to a different team. This would need to be done in accordance with the employee’s employment agreement.
Think about the balance between work and home life you want and decide your boundaries. This will vary from person to person and according to the culture at your workplace. Your employer is not entitled to know what you do outside of work or who you associate with, unless it impacts on them or on your job, such as a conflict of interest.
To keep your work and private life separate there are things you can do:
- Don’t make unnecessary personal phone calls at work where others will hear
- Leave your home life at home, focus on work when you are at work and on home when you’re at home
- Avoid openly posting in social media about your private life if you don’t want people at work to see what you are posting. Adjust your privacy settings to control what you share and who you share it with
- Don’t comment about your job, employer or colleagues in social media
- Use your work email address for work and your personal email for everything else. You will not always have a right to privacy in your work email account
- Don’t use your personal Facebook or other social media profile for work
- At work only use the internet for work purposes. Employers can monitor sites you are looking at to make sure they are appropriate.
COVID-19 vaccination information
An employee’s vaccination information needs to be collected and handled according to the Privacy Act.
An employer must take reasonable steps to make sure information about an employee’s vaccination status is collected, used and stored lawfully.
The obligations under the Privacy Act include making sure:
- that workers are aware of how this information will be used
- any intended recipients of the information
- that workers know why it is being collected
- that it is stored securely
- that reasonable steps are taken to ensure the information is accurate and up to date before it is used.
Privacy and COVID-19 – Office of the Privacy Commissioner (external link)
Retention of personal information – Office of the Privacy Commissioner (external link)