The Unicorn HRO Blog

Employee Privacy

Posted Tuesday, July 14, 2015 by Unicorn HRO

Can an employer read employee emails or monitor Internet usage? Is the use of surveillance cameras legal? Can employers search employees, their belongings or cars? 

For the most part, the use of technology within the workforce to monitor employees’ work, including computer and telephone usage, has been an unregulated field. Specific legal requirements and restrictions can vary greatly depending on the state, the industry, and the employer. Employee monitoring can take many forms, including recording and tracking internet usage, websites visited, tracking key strokes per minute, time away from the keyboard, flagging key words in email usage, and recording telephone conversations. With the increased use of mobile devices, many of these monitoring systems are being applied to work carried out by employees from remote locations and to any type of company property used by the employee.  

Some companies have taken this form of monitoring to a higher level, including using video surveillance in the workplace and monitoring employee’s use of social media sites outside of the office. Legally, the use of monitoring social media sites varies by state, although some employees are choosing to use third party companies to monitor and gather background information on potential applicants as part of their recruitment process. They may also be legally allowed to monitor current employees’ social media presence, including their postings, as part of protecting the company’s public image. Companies are allowed to make use of video surveillance, either to monitor employee productivity or to protect from property theft. However, the details regarding this usage also vary by state and companies should also be aware of the restrictions of these surveillance methods. For example, employees do have a right to a reasonable expectation of privacy in areas such as restrooms, locker, or changing rooms. Dependent on the state, some laws require companies to inform employees of all forms of monitoring, including the recording of telephone conversations. The same laws may also apply for video surveillance which includes audio surveillance, and in these cases at least one of the parties involved should be made aware of and consent to the recording.  

The right to search employees within the workplace, including their belongings and their cars, also vary by state and industry.  In some cases, employers may have the right to search their employees as part of preventing drugs and weapons in the workplace. However, companies must have a legitimate reason to perform a search and the purpose for the search will dictate the type of search that an employer can perform. For example, it would be reasonable for an employer to search an employees’ car if they suspect the theft of a large piece of company equipment; however, it would not be legal to perform a body search, as it would be unlikely that the equipment would be on the employee’s person. The level of monitoring may also vary by industry, with public sector employees enjoying more rights and protections within the workplace, particularly when it comes to expectations of reasonable privacy.  

The take home message is that employee privacy, their rights and protections will vary greatly by state and companies should carefully analyze their state requirements. In most cases, employees should always assume that any technology provided by a company is the companies’ property and that employers have a right to monitor its usage. However, companies should also develop clear company policies and handbooks to provide transparency to their workers to prevent any legal complications in the long run and to serve as a deterrent to misuse of company property.

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