By Larry Weisberg on May 3rd, 2019
Technology has been a great boon to the workplace. We get our jobs done faster, more efficiently and from more places. Employees are no longer limited to a cubicle in an office. Thanks to smartphones and business-oriented apps, you can check your email, the location of your next appointment and even weekly sales goals from anywhere.
Along with all these positives, however, the important question of privacy arises. When so much of your job is conducted using technology, employees need to be aware that while they now have more convenient ways to do their work, their employers also have more convenient ways to monitor what they’re doing. The truth is that your employer can monitor almost every piece of technology that you use on the job.
Can an Employer Monitor My Computer?
Yes. Over the years, courts have permitted employers to monitor their property. This means that your employer can monitor almost everything done on a work computer including:
- How you use the internet
- The software you download
- Any files or documents you store on your computer
- If your computer is idle
- The number of keystrokes you type every hour and even the actual words that you type
Can My Employer Monitor Employee Internet Activity?
Yes. A 2007 survey by the American Management Association and the ePolicy Institute found that 66% of employers monitor internet connections, specifically web browsing. The survey also showed that 30% of employers said they had fired an employee because of inappropriate computer use. Web browsing is not the only thing monitored on an employee’s computer as 45% of employers track employees’ keystrokes or the amount of time they spend at their keyboard, while another 43% of employers said they viewed stored computer files.
You can count on the fact that employers have gotten much more sophisticated about tracking employees’ computer use in the decade since the survey was taken.
Can My Employer Track My Email?
Yes. Work email is not private. An employer can monitor any email sent or received via a work email account. They are not considered private. There needs to be a valid business reason, however, for employers to monitor email. Many companies will ensure the right to do so by providing employees with a written notice via employee handbooks or notices posted in public spaces in the workplace that the company will monitor any email sent or received on a work computer. Even if they haven’t give written notice, employers can in most cases still read employees’ email messages on work accounts.
Can My Employer Track My Personal Email?
This is a more complicated issue. If you use a web-based email account, like Gmail, on a work computer during business hours for personal email, and you have signed approval for your employer to monitor your computer usage, then anything that you write on a web-based email account can be monitored, even if the email is for personal use. The only exception to these policies is that employers cannot monitor the email that their employees use for union-related business on their own time.
Different states handle this issue differently. If you are concerned about your employer monitoring your personal email, you should speak with an employment lawyer as soon as possible to clarify the situation.
The best way to avoid any problems with personal email at work is to treat your web-based email account as a business account. Don’t access your personal email on a work computer.
Can an Employer Track Your Work Phone?
Yes. Employers can monitor employee phone calls for the purpose of quality control. Technically, employers are supposed to stop listening once they become aware that the phone call is personal. If there is a policy that there are no personal calls to be made during work hours, however, the employer can listen long enough to determine the purpose of the call. The employee may then face disciplinary action if it is a personal call.
Can an Employer Use Video Surveillance in The Workplace?
Yes, with some restrictions. The survey conducted by the American Management Association in 2007 mentioned above showed that more than 50% of employers who took the survey reported that they use video surveillance in the workplace to deal with theft, violence or sabotage. About 16% of those employers also responded that they monitored employees’ performance using video surveillance.
If an employer uses visible cameras, federal law allows employers to use video surveillance without knowledge or consent of the employees as long as they do it legally. Courts have tended to put a higher burden of proof on the employer, however, if they use hidden cameras. Employers cannot justify the use of hidden video cameras for “security.” They need to be able to provide a more plausible “business” reason to justify using hidden cameras.
In most states, employers are not allowed to conduct video surveillance in areas like restrooms or break rooms. Even if your state has not specifically forbidden this process, any employer would have a hard time explaining why they were videotaping employees changing clothes or using the restroom.
Can an Employer Use GPS to Track My Movements?
Yes, if you are driving a company car. Employers use GPS installed in company cars to track the speed at which employees drive, the length of a break they take when they are on the road based on how long the vehicle has been idle and the location of an employee. In some cases, GPS in company phones has also been used to monitor the movements and the location of employees on or off the job. It’s a very contentious issue between employers and employees.
Can an Employer Record Me?
An employer must have a legitimate business reason to legally audiotape an employee. Federal law is vague but leans towards employers being able to audiotape an employee, without their knowledge or consent, if not done to commit a crime.
It may also depend on whether you work in a “two-party consent state.” If you work in one of these states, state law requires the consent of all parties participating in a conversation before it can be recorded. There are 12 two-party consent states:
- California
- Connecticut
- Florida
- Illinois
- Maryland
- Massachusetts
- Michigan
- Montana
- Nevada
- New Hampshire
- Pennsylvania
- Washington
In all other states, only one party needs to give consent, which most of the time includes the person who is recording the conversation as long as they are taking part in it. If you are concerned that your employer is recording you, check with an employment attorney about how your state deals with the situation.
Federal labor laws also prohibit the taping of employees to secretly monitor union meetings.
Can My Employer Monitor My Social Media Use Such as Blogging or Posting on Facebook?
In some cases, yes, but this is again more complicated. In the ePolicy Institute survey mentioned above, 16% of employers said that they monitor social media for employee comments. And you can almost count on the fact that as social media has grown over the last decade, so has employers’ monitoring.
There are some limits, however, to what an employer can do to an employee for what they post online. Employees, however, cannot rely on the First Amendment. The First Amendment protects you from government abuse of free speech. If you work for a private company; however, it does not protect you from your employer. If your employer does not like what you post on social media, they may discipline or fire you, particularly if you are an at-will employee.
In most cases, what you write about determines whether you have any protection.
Can My Employer Search My Office, Desk or Work Locker?
Yes. U.S. courts have found that employees do not have a reasonable expectation of privacy since their work desks or their work lockers belong to their employer.
Can My Employer Search Me at the End of My Shift or Work Day?
The answer to this question depends on the circumstances and the situation. If you work in a high-security area or in a business where there have been a lot of thefts, your employer can search you as you leave work as long as the search isn’t too invasive. Your employee handbook will often have guidelines about this kind of work search. If not, check with your employer’s HR department.
What Is My Employer Not Allowed to Monitor?
Despite broad permissions for an employer to monitor many of their employees’ activities, mostly supported by state and federal courts, there are some things an employer is not allowed to do.
1. Personal Email
If you use a personal electronic device, such as your own smartphone, laptop or tablet, to check or to send emails, employers are not allowed to monitor what you send or receive. In some cases, especially if your position involves important government or business secrets, your employer may ask to install monitoring devices or apps on your phone or tablet. You do not have to give permission, although it could affect your job. Consult with an employment lawyer before you sign any agreement to have an app installed on your personal device.
2. Texts
The laws around an employer monitoring texts on a personal device are very similar to the law around personal email. The Electric Communications Privacy Act of 1986 forbids “unauthorized interception” of or access to electronic communications. Employers need your permission before they can monitor texts on a personal device. The Fourth Amendment of the U.S. Constitution prohibits unreasonable search and seizure and may offer additional protection to public sector employees.
3. Blogging and Social Media
While the First Amendment doesn’t protect employees who blog or post on social media, there are some other legal limits on an employer’s right to fire you for what you post. At last count, 29 states and the District of Columbia have passed laws that prohibit employers for disciplining or dismissing employees for what they do on their own time off-site. Pennsylvania is not one of these states.
Strangely enough, some of these laws were originally created to protect smokers from harassment and discrimination. They basically protect employee conduct as long as it is legal. Legal experts believe that these laws could protect someone with a personal blog or a social media account. These include protections for:
- Political views
- Whistleblowing
- Retaliation prohibitions
- Protections for concerted activities
This last category includes protections written into the National Labor Relations Act that protect employees’ rights to talk to each other about the conditions of their job, to join a union or to raise concerns with their employer. For instance, if your employer fires you for posting or blogging about low wages, inadequate benefits or overly long work hours, you could make a legal claim against your employer.
4. Searches
While it has already been established that your employer can search you at the end of the day if you work in a high-security facility or if there have been thefts in your workplace, your employer does not have the right to search you without a reason. In most cases, your employer also does not have the right to single out a particular person for daily searches.
5. GPS Tracking
Tracking an employee’s personal vehicle is illegal in several states, including Texas, Virginia, Minnesota, Tennessee and California. While the law is vague in other states, tracking any employee’s personal vehicle without their consent will no doubt run afoul of a state’s privacy laws. If you think your employer is tracking you without your consent, you should contact an employment lawyer as soon as possible.
Court Cases about Employers Monitoring of Employees
While there have been numerous court cases over the years that have solidified an employer’s right to search employees’ desks, to monitor their email or internet usage on work machines or to subject them to searches if they work in a high-security area, areas concerning the use of digital technology have yet to be clarified.
For instance, in 2015, Myra Arias sued her former employer, Intermex, after she was fired for uninstalling an app on a company work phone that tracked her movements 24 hours a day, seven days a week. Arias, who had no problem using the app during work hours, sought damages of a half-million dollars for what she claimed was an unreasonable invasion of her privacy. Since her lawsuit was settled out of court, the issue remains in limbo. It is advisable, however, for most employers not to track their employees in this manner as they are sure to run afoul of the state’s privacy laws.
While employers can monitor employees or track them, they can only do so for legitimate business reasons. Often they don’t. For instance, in one California case, an employee driving a company car took a lunch break. A manager who was monitoring the employee saw that he was taking his lunch break at a strip club. The company fired the employee, and they called his wife to let her know where he was enjoying his lunch hour. The employee sued and won the case, arguing that they had fired him for no reason and violated his privacy by telling his wife. The company said that they couldn’t afford to have their name attached to anyone at a strip club, but that didn’t stand up in court.
Another area where employers have to restrict the use of technology is with drones. It is illegal for employers to monitor employees using drones if they don’t notify the employees.
Gray Areas
While some areas are cut and dry in terms of how much an employer can monitor employee, the rise in digital technology has created many gray areas. Employees are concerned about what they can post on social media. How much is a company allowed to track an employee using GPS? Or drones? Can an employer track an employee when the employee is in their personal vehicle and not working? What’s the line between an employer’s legitimate business concerns and an overly intrusive invasion of an employee’s privacy?
The truth is that this can vary from state to state and from situation to situation. If you believe that your employer is invading your privacy for what you believe is an unnecessary or illegal reason, you should contact an employment lawyer as soon as possible.
For Questions About Employers’ Ability to Monitor You, Contact Weisberg Cummings, P.C.
If you believe that your employer is illegally or unethically monitoring you in the workplace, contact the experienced employment lawyers at Weisberg Cummings, P.C. immediately. Our team of attorneys will work hard to protect your rights and provide you with knowledgeable counsel. There are so many new and untested issues in this area that it makes sense to work with a team of experienced attorneys to help you determine your path forward.
