In today’s world, new technologies have made it possible for employers to monitor many aspects of their employees’ activity. Recent surveys have found that a majority of employers do monitor their employees. Employee privacy rights revolve around one basic conflict: employers want to be able to ensure that their employees are being productive, but employees don’t necessarily want to work in an environment of constant surveillance. The main issue that arises in any question of employee privacy is whether that employee had a reasonable expectation of privacy.
Computers and Electronic Communications
When it comes to the monitoring of electronic communications, in particular email, employers’ have an extra incentive to monitor communications: they want to avoid legal liability. Email creates an electronic record that employers may have to hand over if they are sued. An AMA study showed that 15% of the companies surveyed had faced a lawsuit triggered by employee email. For example, if a supervisor is sexually harassing another employee via email, employers want to know about this and end it in order to avoid liability. In addition, the mere knowledge that such emails are being monitored may serve as a deterrent.
Generally, employees are deemed to have some expectation of privacy in the work context but employers can conduct reviews of documents and communications if there is a work-related reason. These days, many companies reinforce these rights by adopting email policies telling employees that their email is not private and that the company is monitoring email messages. Such a policy reduces a claim that an employee had a reasonable expectation of privacy. Some companies also require employees to sign a form acknowledging that their email and computer use is not private. A proper policy is one that alerts employees to dangers for abusive use of e-mail and Internet usage, and to make sure their activity is business-related only. Without one, an employee may be successful in arguing that she had a reasonable expectation of privacy.
Even if your employer doesn’t have an email policy, it still probably has a legal right to read any employee email sent using its equipment and network. If the company takes steps to protect the privacy of email – such as providing a system that allows messages to be designated “confidential” or creating a private password known only to the employee – or if the company assures employees that email is private, an employee would have a stronger expectation of privacy in the messages and therefore stronger legal protection if the employer read private emails. However, most courts that have considered the issue have decided in favor of employers, particularly if the company has a compelling reason to read email (for example, to investigate a harassment claim). This includes the United States Supreme Court, which held in 2010 that the city of Ontario, California, could read private text messages a member of its SWAT team sent and received on his city-issued pager.
The law is relatively new in the area of monitoring of email and text message communications. Many legal commentators noted that it appeared as though the Supreme Court in the Ontario court was setting purposefully broad standards – perhaps to allow the details to be filled in by lower courts where younger judges might have a better insight into the issues related to the technology.
Employees have a limited right, created by federal and state wiretapping laws, to privacy in their telephone conversations and voice mail messages. Under both Federal and Minnesota law, an employer who wishes to monitor telephone calls or voice mail messages must warn employees that it is doing so, and establish that the monitoring is undertaken in the “ordinary course of business,” such as to monitor performance or to coach employees. Businesses may tape record conversations if taping is a necessary and ordinary operational practice. For instance, telemarketing companies may tape record conversations to verify sales orders. In addition, an employer may also monitor communications if it has reason to believe that an employee is using the telephone or voice mail to commit theft or somehow damage the company, but again, only if the employer warns the employee that it plans to monitor. An employer who monitors phone calls or voice mail messages for any reason must stop monitoring as soon as it determines that a call or message is private.
Regardless of the context of the call, individuals may use taping devices such as tape recorders and cell phones to record phone conversations if they are participants in the conversation. It is important to note however, that Minnesota’s laws do not regard ownership of telephones or the person responsible for paying telephone bills. Thus, it is illegal for such individuals to record conversations in which they are not a participant – even if they own the phone.
As stated, federal law, which regulates phone calls made across state lines, does allow unannounced monitoring for business-related calls. See Electronic Communications Privacy Act, 18 USC 2510. 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.
Finally, it is important to note that not only can conversations actually be recorded, but telephone numbers dialed from phone extensions can also 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. Generally, there are few limitations for employers monitoring such communications, especially if the employer owns the particular device used for making the calls.
Locker and other Physical Inspections
Employers can usually search an employee’s workspace, including their desk, office or lockers. The workspace technically belongs to the employer, and courts have found that employees do not have an expectation of privacy in these areas. An employer who maintains an employee locker room and provides both lockers and locks has the right to perform periodic inspections of employee lockers. However, to ensure the legality of all such searches, the employer should include a handbook provision that clearly states that employee lockers and other workplace areas remain the property of the employer, and that the employer reserves the right, at all times, to have authorized personnel conduct searches or inspections of employee lockers. In the final analysis, a court will determine whether an employee had a reasonable expectation of privacy. For employers, an employee handbook can be a valuable tool to serve as evidence that an employee had no reasonable expectation of privacy. An employee handbook serves to contradict such an expectation by creating a written record that an employee should not expect privacy.
Written by former law clerk Sean Taylor