Workplace Privacy and Employee Monitoring

Copyright © 1993-2010
Privacy Rights Clearinghouse / UCAN
Posted March 1993
Revised September 2010

  1. Introduction
  2. Telephone Monitoring
  3. Computer Monitoring
  4. Electronic Mail and Voice Mail
  5. Video Monitoring
  6. Workplace Privacy Protections
  7. Resources

1. Introduction

Employers want to be sure their employees are doing a good job, but employees don't want their every sneeze or trip to the water cooler logged. That's the essential conflict of workplace monitoring.
New technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications.
One company offers technology that claims to provide insight into individual employee behavior based on the trail of "digital footprints" created each day in the workplace. This behavioral modeling technology can piece together all of these electronic records to provide behavior patterns that employers may utilize to evaluate employee performance and conduct.  For example, it might look for word patterns, changes in language or style, and communication patterns between individuals.
Recent surveys have found that a majority of employers monitor their employees. They are motivated by concern over litigation and the increasing role that electronic evidence plays in lawsuits and government agency investigations.
A 2007 survey by the American Management Association and the ePolicy Institute found that two-thirds of employers monitor their employees' web site visits in order to prevent inappropriate surfing. And 65% use software to block connections to web sites deemed off limits for employees. This is a 27% increase since 2001 when the survey was first conducted. Employers are concerned about employees visiting adult sites with sexual content, as well as games, social networking, entertainment, shopping and auctions, sports, an external blogs. Of the 43% of companies that monitor e-mail, nearly three-fourths use technology to automatically monitor e-mail. And 28% of employers have fired workers for e-mail misuse.
Close to half of employers track content, keystrokes, and time spent at the keyboard. And 12% monitor blogs to see what is being written about the company. Another 10% monitor social networking sites.
Almost half of the companies use video monitoring to counter theft, violence and sabotage. Of those, only 7% state they use video surveillance to track employees’ on-the-job performance. Most employers notify employees of anti-theft video surveillance (78%) and performance-related video monitoring (89%).

2. Telephone Monitoring

Can my employer listen to my phone calls at work?
In most instances, yes. For example, employers may monitor calls with clients or customers for reasons of quality control. However, when the parties to the call are all in California, state law requires that they be informed that the conversation is recorded or monitored by either putting a beep tone on the line or playing a recorded message. (California Public Utilities Commission General Order 107-B, www.cpuc.ca.gov/Published/Graphics/567.pdf) Not every business is aware of this requirement, so your calls might still be monitored without a warning. Federal law, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. (See Electronic Communications Privacy Act, 18 USC 2510, et. seq., www.law.cornell.edu/uscode .)An important exception is made for personal calls. Under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However, when employees are told not to make personal calls from specified business phones, the employee then takes the risk that calls on those phones may be monitored.
Privacy Tip: The best way to ensure the privacy of your personal calls made at work is to use your own mobile phone, a pay phone, or a separate phone designated by your employer for personal calls.
If I wear a headset, are my conversations with co-workers subject to monitoring? Yes. The conversations you have with co-workers are subject to monitoring by your employer in the same way that your conversations with clients or customers are. If you wear a headset, you should use the same care you would if you were talking to a customer or client on the phone. Some headsets have "mute" buttons which allow you to turn off the transmitter when you are not using the telephone.
Can my employer obtain a record of my phone calls? Yes. Telephone numbers dialed from phone extensions can be recorded by a device called a pen register. It allows the employer to see a list of phone numbers dialed by your extension and the length of each call. This information may be used to evaluate the amount of time spent by employees with clients.
Employers often use pen registers to monitor employees with jobs in which telephones are used extensively. Frequently, employees are concerned that the information gathered from the pen register is unfairly used to evaluate their efficiency with clients without consideration of the quality of service.

3. Computer Monitoring

If you have a computer terminal at your job, it may be your employer's window into your workspace. There are several types of computer monitoring.
    Employers can use computer software that enables them to see what is on the screen or stored in the employees' computer terminals and hard disks. Employers can monitor Internet usage such as web-surfing and electronic mail.

    People involved in intensive word-processing and data entry jobs may be subject to keystroke monitoring. Such systems tells the manager how many keystrokes per hour each employee is performing. It also may inform employees if they are above or below the standard number of keystrokes expected. Keystroke monitoring has been linked with health problems including stress disabilities and physical problems like carpal tunnel syndrome.
    Another computer monitoring technique allows employers to keep track of the amount of time an employee spends away from the computer or idle time at the terminal.
Is my employer allowed to see what is on my terminal while I am working? Generally, yes. Since the employer owns the computer network and the terminals, he or she is free to use them to monitor employees.Employees are given some protection from computer and other forms of electronic monitoring under certain circumstances. Union contracts, for example, may limit the employer's right to monitor. Also, public sector employees may have some minimal rights under the United States Constitution, in particular the Fourth Amendment which safeguards against unreasonable search and seizure.
There may be some additional rights for employees in California given specific statutes of that state. See the paper by Los Angeles attorneys John Caragozian and Donald Warner, Jr., titled "Privacy Rights of Employees Using Workplace Computers in California," published in 2000.
How can I tell if I am being monitored at my terminal? Most computer monitoring equipment allows employers to monitor without the employees' knowledge. However, some employers do notify employees that monitoring takes place. This information may be communicated in memos, employee handbooks, union contracts, at meetings or on a sticker attached to the computer.
In most cases, employees find out about computer monitoring during a performance evaluation when the information collected is used to evaluate the employee's work.

4. Electronic Mail and Voice Mail

Is electronic mail private? What about voice mail?

In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer's favor. See for example:
At least one Court has placed some limitations on an employer's policy that personal emails are not private.  On March 30, 2010, the New Jersey Supreme Court ruled that attorneys for an employer violated the privacy rights of a former employee and the rules of professional conduct by reading emails the employee sent to her counsel on a company laptop through her personal password-protected Yahoo email account.  Stengart v. LovingCare Agency, Inc., 2010 WL 1189458 (N.J. March 30, 2010).  The Court held that the attorney-client privilege applied to emails even though the employer had a general policy stating that the employee should have no reasonable expectation of privacy in communication sent over company equipment.  The court zeroed in on the attorney-client privileged nature of the emails. The court did not address whether the employee would have had a reasonable expectation of privacy with respect to personal email communications with a non-lawyer.
When I delete messages from my terminal, are they still in the system? Yes. Electronic and voice mail systems retain messages in memory even after they have been deleted. Although it appears they are erased, they are often permanently "backed up" on magnetic tape, along with other important data from the computer system.
My employer's electronic mail system has an option for marking messages as "private." Are those messages protected? In most cases, no. Many electronic mail systems have this option, but it does not guarantee your messages are kept confidential. An exception is when an employer's written electronic mail policy states that messages marked "private" are kept confidential. Even in this situation, however, there may be exceptions. (See Smyth v. Pillsbury.)
Is there ever a circumstance in which my messages are private? Some employers use encryption to protect the privacy of their employees' electronic mail. Encryption involves scrambling the message at the sender's terminal, then unscrambling the message at the terminal of the receiver. This ensures the message is read only by the sender and his or her intended recipient. While this system prevents co-workers and industrial "spies" from reading your electronic mail, your employer may still have access to the unscrambled messages.

Are my text messages on an employer-provided cell phone private?
In a June 2010 decision, City of Ontario v. Quon, the Supreme Court unanimously upheld the search of a police officer's personal messages on a government-owned pager, saying it did not violate his constitutional rights. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment rights because it was motivated by legitimate work-related purposes. The city was trying to determine whether it needed to modify its wireless contract, which imposed fees after employees exceeded character limits on text messages.
The city obtained a transcript of Quon’s messages during an investigation to determine whether officers were using their pagers for personal messages. The transcripts showed that Quon had been exchanging sexually explicit messages. The Court’s decision generally allows government employers to look at workers' electronic messages if employers have reasonable, work-related grounds. The decision can be read at http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf.
The privacy issue in City of Ontario v. Quon involved a government intrusion into personal communications, that is, whether or not the 4th Amendment applied to the electronic communications of public employees. The 4th Amendment would not apply to a private employer. However, the decision could have an impact on future court decisions involving private employers.
There is one important lesson to be had from the Quon case: An employer’s policy regarding monitoring need not specify every means of communication subject to the policy. As an employee, you should assume that any electronic device provided by an employer may be subject to monitoring, whether or not such a device is specifically mentioned in a written policy.

5. Video Monitoring


Can employers use video monitoring in the workplace? For the most part, yes. Video monitoring is a commonplace method of deterring theft, maintaining security and monitoring employees.  For example, a bank may utilize video monitoring to prevent or collect evidence on a robbery. A company may also use video monitoring in a parking garage as a security measure for employee safety.  
Employers may also use cameras to monitor employee productivity and prevent internal theft.  Currently, federal law does not prevent video monitoring even when the employee does not know or consent to being monitored.  
Are there situations where an employer cannot use video cameras? In some instances, courts have upheld employee privacy. Specifically, courts have sided with employee privacy in instances where the monitoring has been physically invasive, such as hidden cameras in a locker room or bathroom.  See National Workrights Institute’s Electronic Monitoring in the Workplace: Common Law & Federal Statutory Protection for a more in-depth discussion.
There are some state laws (such as Connecticut’s Gen Stat  31-48b) that have restrictions on where, how and why an employer may videotape employees.  
Labor unions may negotiate limitations on video recordings of unionized workers.  In 1997, the National Labor Relations Board ruled that surveillance was subject to mandatory bargaining, meaning a union must agree to any monitoring of unionized workers. This includes the use of hidden cameras.  Read the National Labor Relations Board Advice Memorandum on this case.  Union members should speak with a union representative if they have concerns about workplace video monitoring.  
What about video cameras that include audio surveillance? Video cameras that also capture audio recordings may be subject to laws relating to audio recording, including wiretap and eavesdropping laws.  
Federal law does not prohibit audio recording of phone conversations as long as one party on the call consents to recording.  Most states have extended this law to include recording in-person conversations.  Twelve states have laws that require that all parties in a conversation consent to audio recording.  For a state-specific guideline of laws regarding audio recording, visit Can We Tape? A Practical Guide to Taping Phone Calls and In-Person Conversation in the 50 States and D.C. (The Reporters Committee for Freedom of the Press).

6. Workplace Privacy Protections

What about my employer's promises regarding e-mail and other workplace privacy issues. Are they legally binding?

Not necessarily. Usually, when an employer states a policy regarding any issue in the workplace, including privacy issues, that policy is legally binding. Policies can be communicated in various ways: through employee handbooks, via memos, and in union contracts. For example, if an employer explicitly states that employees will be notified when telephone monitoring takes place, the employer generally must honor that policy. There are usually exceptions for investigations of wrong-doing. If you are not already aware of your employer's workplace privacy policies, it is a good idea to become informed.
In Smyth v. Pillsbury, the employee's termination was upheld by the court, even though the company had a policy of allowing e-mail use for personal communications. In this case, the employee had sent messages to co-workers that were deemed highly inappropriate for workplace communications. (Smyth v. Pillsbury, C.A. NO. 95-5712, U.S. District Court for the Eastern District of Pennsylvania, Jan.18, 1996, Decided, Jan. 23, 1996, Filed. www.Loundy.com/CASES/Smyth_v_Pillsbury.html )
Are there any laws that deal with workplace privacy? Currently there are very few laws regulating employee monitoring. If you are concerned about this issue, contact your federal legislators, especially the members of the House and Senate Labor committees in Congress. (See PRC Fact Sheet 18 "Privacy in Cyberspace," www.privacyrights.org/fs/fs18-cyb.htm.)

Are there organizations that assist employees regarding workplace privacy?
Yes. There are several groups that are actively involved in workplace monitoring issues and that advocate stronger government regulation of employee monitoring activities.

  • National Work Rights Institute
    166 Wall St.
    Princeton, NJ 08540
    (609) 683-0313
    Web: www.workrights.org

  • 9 to 5, the National Association of Working Women
    207 East Buffalo St., #211
    Milwaukee, WI 53202
    (414) 274-0925
    Hotline (800) 522-0925
    Web: www.9to5.org

  • Workplace Fairness
    www.workplacefairness.org
    Affiliated with the National Employment Lawyers Association, www.nela.org

  • American Civil Liberties Union
    125 Broad Street, 18th Floor
    New York, NY 10004-2400
    (212) 549-2500
    Publications Ordering: 1-800-775-ACLU (2258)
    Web: www.aclu.org

The American Civil Liberties Union (ACLU) also has information related to workplace privacy issues that are not discussed in this fact sheet. Some of the issues of growing concern involve psychological testing, drug testing, polygraph or lie-detector testing and off-the-job surveillance of employees. Visit the ACLU's Web site at www.aclu.org.
Labor groups are taking a stronger interest in workplace monitoring. If your union represents employees' interests regarding workplace monitoring, please contact the Privacy Rights Clearinghouse so we can include information in this publication. Contact Us: http://www.privacyrights.org/about_us.htm#contact

7. Resources

 

You can read original at privacyrights.org


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