Workplace Privacy

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Workplace privacy is a term that describes privacy issues in the workplace.

• As a rule, most U.S. employees have very little expectation of privacy in their workplaces
• Very few states have enacted laws about workplace privacy issues
  • some states may have laws relating to general issues, such as telephone wiretapping
• Employers provide employees with equipment to use at work
  • allow employers a greater opportunity to monitor how their employees are working each day
  • called workplace monitoring
    • types of monitoring:
      • Telephone and voicemail monitoring
      • Video surveillance monitoring
      • Computer use monitoring
      • Email monitoring
    • permissible in the U.S.
    • can be properly used to:
      • measure employee productivity and workplace safety
      • protect employer assets and prevent theft
      • Ensure that employees are properly using the organization’s sensitive data
      • Verify that employees are not violating other policies
        • such as acceptable use policies
      • Protect the company from liability for bad acts committed by employees

Telephone, Voicemail, and Email Monitoring

• Some organizations monitor employee telephone, voicemail, and email conversations as a part of routine activities
  • make sure the employees are providing good customer service
• Employees have few protections from this type of monitoring

Telephone and Voicemail Monitoring

• employer’s right to monitor telephone conversations must be reviewed under federal and state law
• Federal protection for electronic communications is found in the Electronic Communication Privacy Act (ECPA)
  • protects telephone calls
  • generally the use of eavesdropping technologies to record a telephone conversation requires a court order
    • telephone conversation monitoring in the ordinary course of business may be allowed without a court order
  • To use this ECPA exception
    • employer must state a legitimate business interest in monitoring telephone calls
    • must show that the monitoring occurred on equipment provided by a communications service provider
      • must be more than a simple tape recorder
  • Courts tend to give employers deference when reviewing their legitimate business reason for monitoring
    • reason is met if the monitoring is even slightly related to business matters
  • employers may always monitor employee telephone calls when the employee gives consent
• Most state laws have wiretap statutes that are based on federal law
  • some differences:
    • Delaware
      • employers must provide written notice before monitoring calls
    • Connecticut
      • all parties to the conversation must give consent before a call can be monitored
• far less regulation with employer monitoring of stored voicemail messages
  • Under federal law, employers may access messages once they are stored in their computer or telephone systems without notifying employees

Email Monitoring

• very similar to telephone conversation monitoring
• federal wiretap laws in place for monitoring telephone conversations also apply to intercepting email conversations
• real-time email monitoring may be permitted in some instances
  • using equipment furnished by the provider of electronic communication services
  • employer must have a legitimate business purpose for intercepting email
• email is different because it can be stored indefinitely on the employer’s equipment
  • Under federal law, stored electronic communications can be accessed by the organization that provides the electronic communications service
  • This “stored communication” exception is very broad
• under federal law, employee consent always permits an employer to monitor an employee’s email
• State laws generally permit email monitoring in a manner that is similar to telephone monitoring
  • some variations, such as Delaware:
    • employers must provide written notice before monitoring email communications
• Court cases generally have found that employers are free to read email messages when the employer provides the email account
• Sometimes employees access their private, web-based email accounts from employer-provided equipment
  • ECPA prohibits employers from accessing an employee’s personal email account

Computer Use Monitoring

• Employers may monitor employee computer and internet use for many reasons:
  • business reasons
  • discourage inappropriate online conduct at work
• Employees generally do not have any reasonable expectation of privacy in their use of employer-provided resources\
• An employer generally is allowed to monitor an employee’s use of work-provided computers and internet access
  • includes tracking internet use and the web pages that an employee visits
• can monitor computer or internet use in many ways:
  • Employing keystroke loggers
  • Tracking how much time employees spend in software applications provided for work purposes to measure productivity
  • Using software programs to measure employee time spent on the internet
• no federal prohibition against employer computer or internet-use monitoring when the employer provides the equipment to the employee
• Computer and internet monitoring is permitted in most states
  • Connecticut and Delaware are exceptions
    • require employers to give notice before monitoring computer use
• Court opinions provide little guidance on limits of employer monitoring
  • Different courts in different areas have come to different conclusions
  • Some courts have ruled that an employee never has any privacy in employer-provided computers
  • Other courts have decided that an employee may have a reasonable expectation of privacy in employer-provided computers
  • cases are very fact-dependent
    • if an employee keeps the computer in their locked office and uses a password to protect the machine
      • might have a reasonable expectation of privacy in the work computer

Monitoring an Employee’s Personal Computer

A potential question also arises when employers allow employees to use their own personal equipment at work.

United States v. Barrows (2007)

• an employee brought his personally owned laptop computer to work
• connected to his employer’s network
• used the computer at work in an open workspace area and did not password-protect his computer
• While he was away from his desk, another employee accessed his computer and found illegal materials

Tenth Circuit Court of Appeals held that the employee did not have a reasonable expectation of privacy in his personal computer

• no expectation of privacy because he had connected the computer to his employer’s computer network
• had no expectation of privacy in the machine because he used it in an open area, left it on when he was not using it, and took no steps to password-protect the machine

Off-Duty Computer Monitoring

• A majority of states limit the ability of an employer to fire an employee for off-duty activity
• state that an employer cannot fire an employee for use that was both off-duty and away from the employer’s premises

Video Surveillance Monitoring

• Workplace video surveillance monitoring generally is allowed if employees are given notice
  • must have a legitimate business reason for the surveillance
• must not use video surveillance to monitor places where employees have a reasonable expectation of privacy
  • E.g., restrooms, employee lounges, or private offices
• Some states have laws that set limits on what employers may videotape
• employers can run into complications with federal and state wiretapping laws if video surveillance also includes audio recording

Special Rules For Public Employees

• Public employees are employees that work for the federal, state, or local government
• have some extra privacy protections because their employer is the government
• federal constitution protects individuals from interference by the government
• State employees have similar extra protections because of rights provided in state constitutions
• Fourth Amendment protects federal employees from unreasonable government search and seizure
  • federal government must provide employees with notice if it intends to monitor the electronic communications of its employees
  • courts have recognized the government’s right to engage in workplace surveillance for legitimate business reasons
• Employers typically win legal challenges against workplace monitoring practices
  • especially if the monitoring is for a legitimate business purpose
• To protect their own personal privacy:
  • assume that equipment provided by their employers is for work activities only
  • do not engage in personal computer and internet activities on an employer’s computer