As privacy becomes a front-and-center issue, more and more employees raise privacy concerns in the context of investigations into employee misconduct, and a good example of a case presenting these issues is Warinner v. North American Sec. Solutions, Inc. In Warinner, an employee was investigated as part of an undercover drug investigation at an automobile assembly plant. As a result of the investigation, the employee brought an invasion of privacy claim based on an intrusion upon seclusion theory. The court first examined whether the employee had a reasonable expectation of privacy. In this case, since the conduct at issue was a purported drug transaction with undercover investigators that did not occur at the employees’ homes, the court concluded that there was no reasonable expectation of privacy.
The case also addressed whether the reports that were generated regarding the activity were “consumer reports” under the Fair Credit Reporting Act. The court noted that specifically excluded from the definition of a consumer report is any report containing information solely as to transactions or experiences between the consumer and the person making the report. 15 U.S.C.A §1681(a)(d)(2)(A)(i) . Reports regarding employees’ drug use had been held not to be a consumer report based upon this exception. See Salazar v. Golden State Warriors.