For employers, there's often a fine line between monitoring employees and following employee privacy laws. As more technology becomes available, there has been mounting concern about the use of said surveillance technology to monitor employees as well.
For example, one fundamental rule is that surveillance cameras may not be placed in a location where privacy is expected, but what exactly does this mean?
Employment law and issues related to employer surveillance can lead to a myriad of legal issues related to wrongful termination, workplace safety, discrimination, and more.
Along with the proliferation of surveillance and new technology, employee privacy has become more of a concern because of the use of electronic and digital communication on the part of employees in the workplace.
According to a 2018 Gartner survey, 22% of organizations worldwide are now using employee-movement data, and 17% monitor work computer usage. 16% of employers reported using calendar usage data.
Very recently, Amazon got a patent approved for an ultrasonic bracelet. The bracelet would detect a worker's location in an Amazon warehouse, and then monitor how they interact with inventory bins. That system would be used theoretically to track when employees put in or take items out of inventory bins.
Amazon said they don't plan to use the technology, but if they did in the future, it would be a way to free-up employees' hands, so they didn't have to hold scanners to process orders.
The following is a general overview of the privacy rights of employees that can be valuable for not just employees to understand, but also employers.
Employee Surveillance
Employers, even in very small companies, will often use surveillance in the workplace to monitor employees and to prevent theft. Employers can use surveillance, but it has to be done in the areas where they have a legitimate need to film. The areas have to be public, and employees have to know they're being filmed.
The specifics of what you can and can't do when it comes to surveilling employees depend a lot on your state, but overall you can't tape employees doing things like using a restroom or changing clothes.
If a legal issue arises, a court will often weigh the employer's valid need to conduct surveillance against the reasonable expectation of privacy on the part of the employee.
Employers can't secretly tape union meetings, and some courts have even ruled against employees using surveillance while on leave for a workers' comp related injury.
Can An Employer Search Employees' Things?
What about searching an employees' workspace? This could include a desk or office. Many courts have found that these are areas belonging to the employer, so as an employee, you can't necessarily expect privacy in these areas.
The same tends to go for computers and electronic equipment.
It may be within an employer's legal rights to search files saved on a computer and to monitor what employees are doing on the computer.
If you're an employee and you're exchanging emails at work, you may not be able to expect privacy in what you're saying. The email system belongs to your employer.
Your employer may monitor your phone calls, too, but if your employer becomes aware that it's a personal call, they may not be able to listen to the entire thing. In some states, including California, you have to receive notice that your call is being monitored.
On the part of employers, while you do have the right to monitor things like emails that are sent on work computers and systems, it's a good idea to have a well-defined, clear policy that lets employees know that this is a possibility.
Many employers have taken to monitoring employee emails. Don't use your work email for anything personal and don't access your own personal email account when you're using company equipment.
Your employees should know they shouldn't expect privacy when they're using business equipment or resources, or when they're on business property.
GPS Tracking
Employers can use GPS tracking if you're driving a company car, and they can put a GPS on the equipment they own. There are states that do have laws against tracking individuals using GPS, but even in those states, it doesn't apply to company-owned cars or even company-owned mobile devices.
What About Drug Testing?
Drug testing can be seen by some as an invasion of privacy, but it's legal for employers to ask new hires for drug tests, and they can also test them after they're hired if they have reasonable suspicion.
The Supreme Court's stance on workplace drug testing is that while it infringes on your privacy as an employee, it may be needed to ensure others are safe and protected. Most state laws follow the federal laws.
Social Media and Posting Online
Another relatively new topic that's discussed as far as employee privacy rights is whether or not employers can fire someone for something posted online, such as on their social media account, even if they didn't post it while they were at work.
The answer is that yes, you can get fired for what you post online.
For example, if you were to post something disparaging about where you work, you could get fired, or if you were to share certain personal opinions, it might go against your company's code of conduct.
It's best to avoid posting anything that could cost you your job, including bad things about your workplace or your coworkers, or inappropriate comments related to racism or sexism.
The reality is, employees have very few privacy protections when they're at work. The rights you have as an employee are more related to freedom from discrimination and harassment, and freedom from retaliation if you make a complaint against your employer.
For employers, though, that doesn't mean a free-for-all as far as monitoring employees. Employers need to be clear on their policies, and they shouldn't be doing any kind of surveillance that doesn't have a legitimate business purpose because it can get them into trouble down the road.
