Employment Law: Privacy Rights in the Workplace

Murphy Desmond Lawyers

A 2001 survey conducted by the American Management Association revealed that 78% of employers monitor their employees' activities in the workplace. From the telephones and voicemail to the Internet and email - employers are watching their employees. With such staggering statistics, there is a good chance that you, as an employer or employee, are affected by workplace monitoring. Therefore, it is important to understand your rights and responsibilities related to this issue.

Employers may have legitimate business reasons to monitor employees' workplace communications. They may want to increase productivity or protect themselves from potentially disastrous computer viruses, harassment lawsuits and leaks of confidential information. However, it is important to balance the employer's business goals with the employee's right to privacy. Tipping the scales in favor of business goals may result in a lawsuit.

There are two general legal risks posed by employee monitoring: (1) common law invasion of privacy claims for an unwarranted intrusion on an individual's private affairs; and, (2) violation of the Electronic Communications Privacy Act of 1986.

  • Invasion of Privacy Under Common Law. To establish an invasion of privacy under common law, an individual must establish that an objectively reasonable expectation of privacy was invaded. Take, for example, workplace email. Employers generally have the right to read employee email messages on the grounds that the employer owns the computers and email system. However, employers may subject themselves to an invasion of privacy lawsuit if the employer monitors email after assuring employees that their email messages will remain private. An employee may also have a stronger expectation of email privacy if the email system allows messages to be designated as "confidential" or requires passwords known only to the employee.
  • Electronic Communications Privacy Act of 1986. The Wiretap Act and the Stored Communications Act were both enacted as part of the Electronic Communications Privacy Act of 1986. The Acts, in part, prohibit interception, accessing or disclosure of electronic communications and have been interpreted to cover telephone, email and online communications. There are three exceptions in which an employer may monitor employees' electronic communications:
    1. The Business Exception. The business exception permits employers to monitor business-related activities if the monitoring is in the ordinary course of business. Business-related activities do not include personal phone calls. Thus, employers should be cautious not to monitor employee calls once the employer realizes that the call is personal. Some have argued that an employer may have more leeway to monitor employee personal calls if the employee has been warned against engaging in personal calls. However, the Courts remain divided on this issue and a conservative employer would be wise to avoid monitoring an employee's personal calls.
    2. Consent. An employer will also be removed from the Acts' provisions if it obtains the employee's prior consent to monitoring. Implied consent may be shown if the employer can prove that the employee knew or assented to the workplace monitoring. However, a better practice is for the employer to create a written monitoring policy and obtain signed consent forms from each employee stating that the employee read and understood the monitoring policy.
    3. Service Protection. The final exception allows providers of communication services to monitor the service for the protection of the service. However, a Florida Court construed this exception to allow an employer to intercept and record the telephone conversations of its employee on a work-provided cellular telephone.

Employers and employees should also be aware of particular state laws that may provide for stricter regulations related to employee monitoring. For example, the Electronic Communications Privacy Act of 1986 does not require an employer falling under one of the three exceptions to give their employees notice of the monitoring. Yet, some states require employers to inform parties to a call of the monitoring with a signal or specific message.

In light of the potentially confusing laws, here are some tips for employers engaging in or thinking about engaging in employee monitoring to avoid trampling on employees' rights:

  • Monitor Only for Legitimate Reasons. An employer will waste less time and money if it monitors only for sound business-related reasons such as: an unauthorized use of equipment, quality control, security and productivity tracking.
  • Adopt a Written Policy. Employers should adopt a written policy informing its employees that they will be monitored and under what circumstances the surveillance will be performed. The policy should clearly state that employees should have no expectation of privacy and the employer has an absolute right to access employee's communications. The employee should sign a written statement acknowledging their understanding of the policy.
  • Train Employees About Policy. Employees should be fully knowledgeable about the rationale and procedures of the policy. In addition, managers should be trained concerning the proper procedures for employee rights when investigating alleged policy violations.
  • Enforce the Policy Uniformly. Uniform enforcement of policies maintains management credibility, avoids discrimination and harassment claims, protects trade secrets and prevents copyright violations.

Employee monitoring is an important and ever changing issue. In July 2000, two bills were introduced in the House and Senate involving the Electronic Communications Privacy Act of 2000 (HR 4908; S2898). The bills required employers to give notice of monitoring to employees with few exceptions. Violations subject an employer to serious monetary penalties. Both bills have been stalled in committees since September 2000. Employers may breathe only a temporary sigh of relief as it is likely that new bills with new regulations for employee monitoring are on the horizon.

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