Surveillance and Monitoring of Employees Under Privacy Law
Some employers use hidden cameras at the workplace to monitor the productivity and behavior of their employees, as well as identify any signs of potential theft. However, these cameras may raise privacy implications and infringe on the rights of employees. Federal employment laws are generally silent on this issue, so rights in this area depend on the laws of the state. Some states have enacted very specific laws addressing surveillance in the workplace, such as California’s ban on installing a surveillance mirror in a restroom, shower, or locker room at work. Other states specifically prevent employers from installing cameras in employee lounges and union meetings, for example.
Even if a state does not have a specific law on workplace privacy, employees can expect to be protected from certain types of filming on the job. It is widely accepted that employers cannot videotape employees who are changing their clothes, using the restroom, or engaging in other behavior that involves nudity or exposure. There is a strong expectation of privacy in these situations, and it is highly unlikely that an employer would have a sufficiently strong countervailing interest to balance it.
Email Monitoring
By contrast, employees usually have a minimal expectation of privacy when they are using email systems at work. These can be viewed as similar to using a work phone. Many employers want to monitor the emails an employee writes to ensure that they are not later sued for the contents. If an employer has a valid business reason, it likely can monitor employee emails. On the other hand, if it is monitoring emails for a purpose that infringes on employee rights, such as the right to participate in a union or report misconduct at the job, this would be illegal. Some companies set specific policies and procedures for how they will handle email monitoring. This can create a stronger expectation of privacy, although the employer may or may not be legally required to adhere to its own policy.
What if an employee is using their personal email account on a work computer, and they find out that their employer is monitoring these emails? They may need to contact an attorney to get a clear assessment of their rights, since this area of the law remains unclear. In some situations, an employer will require employees to sign a written document that gives the employer the right to monitor any activities on company equipment, such as emails being sent on work computers.
Regardless of any precautions that an employee takes to delete emails, their employer may have installed systems on their computer to copy and preserve them. An employer may even be using software on its equipment that copies and stores drafts of emails that were not sent. Thus, employees should refrain from writing or sending messages that they would be uncomfortable with having their supervisor read. Not every written message will sound the same to every audience, and it may be best for employees to use common sense to avoid causing unintentional offense.
