While most contemporary concerns about a right to privacy, or lack of it, seem to focus on the traditional debate of when or if the government should have the authority to limit our privacy in order to ensure a safer community; an equally important, but less analyzed concern is privacy in the workplace. To be sure, the workplace is a potentially more threatening environment for privacy in that, unlike the government, there are no constitutional requirements and few legal restraints on the ways employers or people can invade one’s privacy. In fact, employers can literally write their own “privacy laws” in regards to their facilities, working environments, and work related activities (Solove et al., 2005). Moreover, they can demand that you acknowledge and agree to these laws as a condition of your employment. Despite, the flexibility that an employer enjoys regarding workplace privacy, there are nevertheless some standards that an employee can demand that their employer complies with or follows and that provide at least a limited degree of protection.
Employers can create the privacy environment that they want through the drafting of a privacy policy that explains what is and is not private, and what activities they have the authority to monitor (Solove et al., 2005). Employers have argued that they need the authority to interfere in the privacy of their employees because it is necessary to: increase productivity, police the workplace, protect themselves from crime or misconduct. These authorities are limited to the extent that an employee has a “reasonable expectation to privacy” in the place or conduct in question or whether a relevant law protect the employee’s rights (Solve et al., 2005). While employers monitoring of employees is not a new issue, it has become more relevant as information technology provides employers with significantly increased means to obtain and analyze employee actions.
Phone Calls
The monitoring of phone calls/conversation is one of the more traditional areas where employers have demanded to have the authority to interfere. For the most part, the court and the laws have allowed employers a wide latitude to monitor an employee’s phone calls subject to a few restrictions. First, employers are subject to federal electronic surveillance laws (PRC, 2016). Those laws prohibit, for example a party from wiretapping a phone without at least one party to the communication’s consent. Second, if the phone call is personal, then an employer is not allowed to monitor the call, unless personal calls are prohibited (PRC, 2016). Third, an employer may not access or monitor a call made from an employee’s personal phone, unless as provided for in the employer’s office policy.
Outside of these restrictions, an employer can generally monitor an employee’s conversations if they use a company owned or provided for device. This includes information about the numbers dialed or received, text messages sent and received, the length of the call, and the heard conversations. If there is an official policy not to use company phones for private conversation, and employer can listen to enough of the conversation to determine if it is private and provide proof of a policy violation. If the employee uses their own device, an employer may still be able to monitor the call depending on how strict the office policy is on using personal phones in the office or on an office network
Recommendation: employees that do not want their phone calls monitored should, first, never use an office device to make a personal call. Second, if a personal call is necessary, use a personal device as long as the employer allows their use. Third, make a call on a personal device outside of or off company property.
Personal E-mail
Over the last several decades as e-mail has become a common means to communicate for both business and pleasure, employers have increasingly targeted employee e-mail usage for monitoring. As with phone calls, the law mostly allows employers to monitor e-mail usage that occurs with a company provided e-mail account. That is to say, one’s work e-mail is not private.
A personal e-mail account, such as a Gmail account, is private, and an employer may not monitor or access it without authorization. However, there is a possible employer work around to this. If the employer has a policy that it will monitor employee use of the Internet on company computers and the employee accesses their personal e-mail account from a company computer, the employer would have the authority to monitor the employees e-mail to the extent that is viewable on the computer screen (PRC, 2016)
Recommendation: employees should never use their work e-mail accounts for personal affairs. If an employee needs to use e-mail use a personal account on a personal device.
Social Media
In the last half decade, social media has quickly surpassed, e-mail, texting, and phone calls as the primary means that many people communicate. Accordingly, employers have almost increasingly targeted social media as an area to perform employee monitoring. As this is a relatively new area of concern, the law is not as settled as in other areas of workplace monitoring. Nevertheless, courts have seemed to allow employers broad discretion in monitoring social media, with a few limitations. First, just as with the public at large, an employer is allowed to monitor anything that an employee publically posts to a social media account. For example, an employer can monitor the Twitter account of any employee that opened the account using their own name or that is easily identifiable as the employee (PRC, 2016). However, the employer would not be allowed to hack into the Facebook account on an employee that did not “friend” the employer. Second, the employer could monitor employee use of social media if it is done on company device or through a company network as per their internet monitoring policy.
Recommendation: employees should be careful what the publically post on social media. Additionally, employees should monitor who they provide social media access to in the event that the employer has access to that person’s social media. Third, employees should never use social media from a company device.
Infographic courtesy of: Savelyeva, S. (2015, Oct. 23). 6 ways to benefit from remote employee monitoring, Retrieved from http://blog.yaware.com/infographic-6-ways-to-benefit-from-remote-employee-monitoring/
References
Privacy Rights Clearinghouse (PRC). (2016). Fact sheet 7: Workplace privacy and employee monitoring. Retrieved from https://www.privacyrights.org/workplace-privacy-and-employee-monitoring
Solove, D.J., Rotenberg, M., Schwartz, P.M. (2005). Information Privacy Law, 2nd Ed. New York, NY: Aspen Publishers.
