Internet Lawyer Blog
Workplace privacy rights and legal restrictions on workplace monitoring are important issues. Many employers monitor employee activities to increase productivity and avoid workplace violations. They may use special software to monitor the network activities which can include email, telephone, and internet activities. However, they should also consider the employee’s reasonable expectation of privacy.
An employer, that has a legitimate interest in monitoring its employees, should be allowed to monitor business-related communications without problems. A legitimate interest can be established when there is proof that surveillance was conducted to promote efficiency and productivity. Employers usually inform their employees that they are being monitored to avoid violating their privacy rights. In other words, once the employee knows that he or she is being monitored, then he or she does not have a reasonable expectation of privacy. However, any kind of workplace monitoring should be narrowly tailored in time, place, and manner.
The Electronic Communications Privacy Act (codified under 18 U.S.C. 2511, et seq.) is a federal statute that is designed to control the workplace monitoring of electronic communications. It generally prohibits employers from intercepting electronic communications of their employees. Nevertheless, there are the following exceptions: (1) business purpose exception; and (2) consent exception. The “business purpose exception” applies when the employer is able to show surveillance was being conducted for a legitimate business purpose. The “consent exception” applies when the employer is able to show surveillance was being conducted with the employee’s knowledge and consent.
The Stored Communications Act (codified under 18 U.S.C. 2701, et seq.) is a federal statute that prohibits intentionally accessing an email server without authorization while in electronic storage. The courts have been faced with the situation where a former employee handed the employer-owned laptop (or other electronic device) to the employer while the former employee’s personal email account was accessible.
The Wiretap Act (codified under 18 U.S.C. 2511, et seq.) was enacted to prohibit the interception of stored voicemail messages and live phone calls. It is codified under “Title I of the Electronic Communications Privacy Act” which is designed to prohibit the interception, use, disclosure, or procurements of any other person to intercept wire, oral, or electronic communications. It is also designed to prevent the usage of illegally-obtained communications as evidence. There are exceptions that are applicable to communication service providers and law enforcement agencies.
Invasion of privacy is a common law claim which can be proven when someone’s reasonable expectation of privacy has been violated without proper authorization. In California, the law prohibits employers from conducting video surveillance in areas where the employee has a reasonable expectation of privacy – e.g., bathrooms, showers, locker rooms. Employers cannot engage in secret video surveillance of their employees. For example, they cannot install two-way mirrors in bathrooms, showers, or locker rooms. Social media privacy is another sensitive topic when it comes to employment because employers have been known to look into a potential employee’s social media profiles. Now, most states have proposed or enacted social media privacy protection laws that prevent an employer from demanding access to the employee’s social media usernames and passwords. These laws can also prohibit employer retaliation against their employees if they refuse to grant access to their social media profiles. However, in some cases, employers have obtained written consent from employees.
Workplace privacy is also important when conducting a job search with potential employers. Therefore, you should not post sensitive or confidential information (e.g., date-of-birth, Social Security number) on your online resumes. The law permits employers to conduct background checks on prospective employees to determine their employment qualifications. Nonetheless, formal background checks should be limited only for that purpose.
Our law firm assists clients in matters related to workplace privacy rights. It’s important to know your legal rights and responsibilities when involved with workplace surveillance. Please contact our law firm to speak with an internet attorney at your earliest convenience.