Federal and most state privacy laws give discretion to employers as to how far they can go with their employee monitoring programs. In some cases, employers do not have to inform employees they are being monitored, depending on their state and local laws. Some regulations do require employee consent.
“As a general rule, employees have little expectation of privacy while on company grounds or using company equipment, including company computers or vehicles,” said Matt C. Pinsker, adjunct professor of homeland security and criminal justice at Virginia Commonwealth University.
Federal workplace privacy and employee monitoring laws
Federal workplace privacy and employee monitoring regulations stem primarily from the Electronic Communications Privacy Act of 1986. The ECPA allows business owners to monitor all employee verbal and written communication as long as the company can present a legitimate business reason for doing so. It also allows for additional monitoring if the employee gives consent. However, the ECPA consent provision can be tricky, as it might be inferred to allow monitoring of employees’ personal communications as well as business ones.
Additionally, several federal court cases have determined that employers may legally look through employees’ emails after they are sent. That’s because the ECPA defines “electronic communications” as any electronic messages currently in transmission. Upon sending, these transmissions become “electronic storage,” which courts have determined employers can monitor.
In general, monitoring must be within reason. For example, video surveillance can be conducted in common areas and entrances; however, surveillance in bathrooms or locker rooms is strictly prohibited and opens a company up to legal repercussions.
Another issue arises when you retain any recordings, especially of meetings. If you record meetings with employees, especially ones dealing with discipline or HR-related issues, you may be legally obligated to keep those recordings and turn them over to a court if litigation arises. [Interested in using a video surveillance system? Check out our best picks.]
Monitoring computer web activity is different and can fall under different legal precedent. There are different types of computer monitoring software solutions, some with the ability to show you exactly what employees are doing on their computers. You can monitor everything from what websites employees are browsing on the business’s Wi-Fi to what keystrokes they are making on their company laptop. There is practically no reasonable expectation of privacy for an employee using a company device, so a good rule of thumb is to assume that anything employees do on their company-owned computer is visible to their employer.
While it’s fine to monitor employees’ computer usage to make sure they’re not wasting time on social media and frivolous browsing, employers should know they risk acquiring too much information. Employers already have employees’ most personal data, and they can run amok of privacy laws like HIPAA if they disclose private information to anyone.
As an employer, you have the burden of protecting that information, even that which comes from an employee’s personal browsing history or private data stored on a company computer. If a data breach were to occur, for example, and certain sensitive information was exposed, it leaves the company vulnerable to litigation by the employee.
State workplace privacy and employee monitoring laws
As with any issue that states regulate, no two states have the same laws on workplace privacy and employee monitoring. The most notable laws come from the following states:
Connecticut: Any company that monitors its employees in the workplace must let employees know ahead of time in writing and detail the tracking methods used.
California, Florida, Louisiana and South Carolina: All these states’ constitutions explicitly state that residents have a right to privacy. As such, employers in these states may need to tread carefully when setting up employee monitoring systems.
To be safe, you may be best served by checking with your legal counsel that your use of this technology adheres to both federal and state regulations.
Key takeaway: The ECPA is the primary federal law governing employees’ rights under workplace monitoring. Several states have their own regulations that employers in those states must also follow.