are well aware that such actions may expose them to claims for breach of contract if they depart from established employment policies, disparate treatment claims under Title VII if they treat similarly situated employees differently on the basis of a protected characteristic, and emotional distress claims if they do almost anything that upsets an employee.
             In addition to these common claims, however, such employer action may implicate a number of privacy issues. Increasingly, employees have relied on a variety of privacy protections as yet another avenue for asserting claims against employers. The most common claim asserted is invasion of privacy, sometimes called "intrusion upon the seclusion of another."
             The employee privacy area can be difficult for employers to navigate because cases generally turn upon whether an employee had a reasonable expectation of privacy while engaging in the act that is being monitored by an employer, and whether the employer's means of monitoring was unreasonably offensive. As one might expect, it is difficult to predict what expectations of privacy courts will deem to be reasonable and what means of investigation they will find unreasonable. Analyzing some of the most recent court decisions in this area does, however, offer some guidance.
             I. Employee Investigation: The Johnson v Kmart Case
             In a recent Illinois case, the court found that an employer may have unreasonably intruded upon its workers' privacy rights when it hired undercover investigators to pose as employees and report their observations to management.1 The employer, Kmart, suspected that employees were stealing, vandalizing merchandise, sabotaging operations, and using and selling drugs in a distribution center where some 500 people were employed.
             To identify the responsible individuals, Kmart hired two private investigators to work undercover at the center, mingle with employees, and periodically submit confidential repor...