employee privacy - what can employers monitor
Can you spy on your employees?  Is it spying if they consent?  Does an employer have to give notice before monitoring employee phone and computer use?  Well, it depends on who owns the accounts and equipment and what the employer’s policies are.

Here’s a breakdown.

Overview by Device/System

Employer Phones:  Employers generally can monitor, listen in and record employee phone calls on employer owned phones and phone systems.  This includes cell phones, voice mail and text messages provided to employees.

For example, in City of Ontario v. Quon (2010), the US Supreme Court found that a police officer’s personal text messages on a government owned pager were not private and the employer/police department had the right to view the messages—even though public employees (unlike private employees) have 4th Amendment rights against unreasonable search and seizure since their employer is the government.

Personal Phones:  Employers generally cannot monitor or obtain texts and voicemails on an employee’s personal cell phone.  But if you’re spending a lot of time at work loudly talking about your weekend plans, there is a good argument that it wasn’t private and you can be disciplined for not working.

Employer Computers- Again, if the employer owns the computers and runs the network, the employer is generally entitled to look at whatever it wants on the system, including emails.

Personal Accounts:  It depends on the circumstances—whether the use is at work and on employer equipment.  The employer should not look at private emails on a private email account that is password protected by the employee because the employee has a reasonable expectation of privacy, the account is the employee’s, and computer hacking laws provide protection against viewing personal emails without consent.

However, employees should be careful about using those accounts and passwords on employer owned equipment, because that information can be stored in backups, is visible to monitoring software and may not really be private at all.

Several cases involving private emails on employer time and equipment have gone against the employee and determined that the employer’s interception or use of an employee’s personal emails was permitted because of policies that allowed it and implied consent and because the employee was using employer owned computers or sending the emails from work.

Even cases of employees contacting their attorney have gone both ways.   In Stengart v. Loving Care Agency, Inc.  (New Jersey 2010) an employee emailed her lawyer on a company laptop, but through her personal password protected Yahoo account.  The court held the emails were protected by the attorney client privilege, but did not really address the privacy issue.

In Holmes v. Petrovich Development Company LLC (California 2011) an employee contacted her attorney on a company computer with a company email account.  The court found the emails were not protected by either a right of privacy or the attorney client privilege.  Using the company account and system waived the privilege, and company policies precluded any expectation of privacy. The employer had issued policies that company machines could only be used for business and gave notice that employees had no rights of privacy in their use of company equipment.

In Sitton v. Print Direction, Inc. (Georgia, September 2011), an employer did not violate an employee’s privacy rights by accessing an employee’s personal laptop to print out personal email messages.  The employee had been using his personal laptop at work to help his wife run their printing business.  The boss came into the employee’s office and saw the computer screen that had a non-work email open.  Both the trial court and the court of appeal found that the employer had a legitimate interest in investigating whether or not the employee was running another business from the employer’s worksite on the employer’s time and found that printing out the emails was proper.  The employee had to pay the employer damages for breach of the duty of loyalty.

I am not familiar with Georgia law and the duty of loyalty there. But I anticipate there might be a different result in right to work states and states like California, where there is also a Constitutional Right to Privacy.

Surveillance Cameras & Video Monitoring:  An employer can monitor its property with surveillance cameras, especially in public and common areas.  However, certain areas such as locker rooms, changing areas and bathrooms are generally considered private and not subject to monitoring.  Private offices may or  may not be protected depending on the circumstances. (See tomorrow’s piece on Common Law Privacy Rights.) Some states, such as Connecticut, have specific laws restricting how and for what purpose employers can videotape employees.  And state laws on recording conversations apply to video surveillance.

Laws on Phone and Computer Surveillance: 

1.  Electronic Communications Privacy Act of 1986  (part of the Omnibus Crime Control and Safe Streets Act, 18 USC sec. 2510 et seq.). This federal law generally prohibits unauthorized “interception” or access to electronic communications and would include telephone, email and computer use.  However, there are several huge exceptions that basically allow an employer to monitor anything on its own systems.

  • Business Exception:  There is a business exception that allows an employer to monitor employee use of its own systems for “legitimate business needs.”  This includes improving customer service, preventing harassment and making sure that people are actually working.
  • Consent to Monitoring: If one party to the communication consents to the monitoring, then monitoring is permitted even if the business exception does not apply.  “Consent” requires the employer to give advance notice of its policy to monitor—it does not require the employees to agree.  Consent is implied from the fact that they learned about the policy and decided to keep working there.
  • Employer Owned Systems: The owner of the email, IM and phone message systems is also allowed to access the communications even if they are personal.
  • Limitations on Employer Monitoring:  No continuous monitoring.  If the call is obviously personal, the employer has to stop listening.  However, the employee can still be disciplined for making personal calls on company time.

2.  Computer Hacking Laws. Using employee passwords to sign-in to their personal or social media accounts can violate state and federal computer hacking laws and constitute identity theft.  All 50 states have laws that prohibit someone from unauthorized access to another person’s computer and online accounts, especially if the intent is to change or modify access or content.   This would include deleting an inappropriate post.

In Pietrylo v. Hillstone Restaurant Group (New Jersey 2009), two employees set up a password protected MySpace account where employees could vent about working at the restaurant.  A manger got a hold of the password and logged into the site to discover disparaging and sexual remarks about management and references to illegal drugs.  The restaurant fired the employees who sued under the computer hacking laws.  The court found for the employees because the restaurant’s employee monitoring policy did not extent to private online communications on a social network outside of work.

3. State Laws on Recording Conversations—States are permitted to make more restrictive laws that protect employees and the public from monitoring, even if the federal law would allow it.  In Maryland, everyone in the conversation must consent before the conversation can be recorded.  California requires that any monitored phone conversation have a beep at certain intervals or there must be a message informing the caller that the conversation may be recorded.  Other states, including Connecticut, New York, Pennsylvania, Colorado and New Jersey, also have laws relating to when a conversation may be recorded.

Take-Away

If the employer owns the system, hardware or both, the employer can monitor employees’ use of it, including personal files and communications.

If the employee owns the system and hardware, the employer’s ability to view and obtain personal files depends on the whether the employee is using it at work, whether the employer has a legitimate interest in viewing the communication, what the state’s laws and employer’s policies are, and what the employee’s objective expectations of privacy are.

With the blending of work and personal lives on social media and through initiatives to improve employee engagement and create a friendlier, more personal culture at work, it’s essential that employers look this issue. Just because you can legally monitor something doesn’t mean that you should or that it is good management practice.  If you want a relaxed work environment where employees are trusted and treated as grown-ups, monitoring and discipline over personal phone and computer use will not promote your cause.  But if you are dealing with sensitive information that requires higher levels of security, then you may need to monitor to protect the business. But you can’t have it both ways.

Tomorrow-Common Law and Off Duty Privacy.

 
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  • Elisa Cortez

    Can employers listen/record conversations in the human resources department

  • Bert Leen

    Kernel For EDLV software designed for employers wanting to more
    closely monitor their employees’ computer usage in order to better
    evaluate employee computer behavior and ultimately increase their
    performance. Recently i am using this tool you can try this…..!

  • Oh yeah, companies use Sniper Spy and Mobile Spy to monitor company devices. It’s ok with me as long it is the companies devices. I don’t think personal devices are ok.

  • disqus_9QLR4rJhIB

    What about walkie talkies where they can be programed so that a master walkie talkie can hear personal conversation even though the talk button is not being pressed? Is that legal?

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  • cleojones

    the long arm of the law is always close by to spy.. SMH….

  • TDA602

    I am wondering if there are any laws or regulations regarding listening in on your boss’ communications. I have done this, and have found illegal activity going on in the management. Now I don’t know how to proceed without incriminating myself.

  • Beeblebrocs

    Resurrecting a thread.

    Given that the typical employee is not going to carry 6 devices with him all the time (laptop for personal use, laptop for company use, tablet for personal use, tablet for company use, smartphone for personal use, and a smartphone for company use), it makes sense that there will be both personal and corporate information intermingled on a single set of devices. Practically speaking, there is no avoiding the reality that both corporate and personal data will live on a single device. This is especially the case for salaried employees who “are the job”.

    Look at how people use Skype. Individuals cannot set up Skype on a device to monitor two accounts. Skype is a single-account-at-a-time service. So if an employee is expected to be available via Skype for company communications and that employee also wants to be available for personal messaging, then those two types of Skype conversations will be intermingled.

    So here’s the risk for an employer: Given that there is no easy way to separate private from corporate conversations (whether they be SMS, iMessage, email, etc.) when the employee is using a single device, the employer needs to be keenly aware of the fact that they may end up viewing communications protected under federal privacy laws. I can provide lots of examples where personal information such as banking, criticisms of fellow employees or the employer, and other confidential info might reasonably be found on a company owned device. Such information could have been sent by a spouse to the employee via their Skype account for example, not realizing that the communication was getting mixed in with corporate messages.

    Companies cannot reasonably expect their employees to carry 6 devices nor can they expect people communicating with their employees to know on which device they should contact them.

    This is easily demonstrated.

    One day, a C level exec Skypes one of his directors with a negative comment about another C level exec such as “I’m sorry I can’t get new staff hired, I’m running into a huge roadblock with Fred who is protecting his own budget instead of looking at the larger picture”. The director reads that message on his company owned iPhone running Skype. That message obviously gets mixed in with all the other texts the director has received. Then, one day the director leaves the company and has to immediately turn over his company owned iPhone. Someone from HR is then reviewing Skype messages and sees the message from the first C-level exec complaining about the other C-level exec. HR takes that message to the CEO who then (probably ill-advisedly) fires the first C-level guy for criticizing his brother-in-law, Fred. The fired C-level exec then sues the company for violation of his privacy, wins, and the company is fined under ECPA for illegally intercepting personal information.

    The problem here is that the company does not own the Skype account. The account belongs to the employee and the company has no right to intercept communications on that account even though it is being checked via a company owned piece of hardware. The hardware is irrelevant here as is the time that the communication happened. The DATA is what is important and that data belongs to the employee. Similarly, if communications relating to company business are being communicated on the employee’s Skype account (which happens continuously all over the world right now), then the company would have an expectation that said communications be wiped from the Skype history when the employee leaves the company.

    Personal devices and accounts must, by practical necessity, reside on a single device since carrying multiple devices is pretty much impossible.

    Bottom line, in the BYOD world or the world of Skype, employers better be careful about assuming that just because they own the device, they have a right to view the personal information on said device. This is especially important if an employer requires their employee to carry an employer owned phone. Since no one wants to carry two phones there is simply no way for people to compartmentalize the data. The only solution is for the employer to give the employee the opportunity to remove any personal information from the device before departing the company and to require that the company be able to remove all of their data from an outgoing employee’s device.

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  • David Hoyt

    I have a question i have a personal cell phone i don’t use this as a company phone i hardly use at work .sometime my wife may text me or call me and i am also a volunteer firefighter and sometime my fire dept may call me and sometime i get a 911 emergency call as text message most fire dept do this.the 911 texts message is a message that tell the address and type of call . i don’t get this a lot my dept don’t run a lot call. now my boss told some of my co-workers to monitor my phone and if it was fire related to report back to my boss asap.

  • Tim Hines

    Where can one find information about monitoring video WITH audio in the workplace? North Carolina laws.

  • Stan Phillips

    Actually, your example is incorrect. The Federal Law allows employer owned equipment that winds up storing such information, legal, therefore, the employee would have no expectation of privacy. This doesn’t mean the employer can listen in, if its personal. But the employer could listen in if its on a employer owned device. You are totally wrong with the ‘DATA’ factor.
    You are trying to say because data on e mail,, or Skype is personal being used on employer OWNED equipment there is a right to privacy? No there is not. The other point your mistaken on is no one needs to carry 6 devices, and this is the basis of your argument. If the said EXEC had a personal cell and used that ONE device, not SIX for all personal communication, e mail, Skype, surfing, etc. — he would still have a job.
    Next, because you mentioned it is a Corporation, they would have in place already informed all employees that any employer owned equipment can be monitored. The employee doesn’t even have to sign something, in order for this to be in effect. If I say to you, do not use the phone for personal use in a written statement and you disagree and do not sign, but continue to work and use the phone you have giving implied consent to me monitoring your phone calls on my employer owned device.
    The other thing you need to ask, does the C level employee work in a state Employee at Will. Which is just about all states. If yes, then he can be fired for no cause at all-and he can quit for any reason without notice.
    Your arguing over data transmission which is not part of the Federal Law. You really do not have an argument, not in a court.

  • Stan Phillips

    If its truly illegal as an employee you cannot do much. You can tip off the local authorities. OR, if its illegal work activity like ordering 20 items when the boss wants 18 and keeping two. Then inform the next chain of command person. Who said you have to be involved? Leave an anonymous note on his supervisors desk, or owner. And if its the owner and criminal, meaning a true offense he can be charged with, like selling cocaine from the companies office then you can go to the police.
    OR, quit find another job then rat then out after so you have less to lose.

  • Stan Phillips

    Here is the rub. You are right, send it on a company device, use a company device you are at risk. However, on your personal device on your own time your ok. Your personal device on company time, the company can overhear you talking on your cell, on company time. And you can be disciplined anyway for abusing company time, has nothing to do with your equipment.
    The safest thing to do is use work equipment for work purposes and personal for personal and stay off the phone on company time.
    If you were working 20 years ago, you would not have access to the net or cell phones, so its a non issue, so what is the big deal, stop using it unless a true emergency you can document to your employer.
    You are stealing from your employer if you are talking on company time.

  • Ruslan Sudentas

    Most important step to protect a company legally is to get a written consent for monitoring from your employees. Then you should really understand the differences between monitoring programs: http://screenshotmonitor.com/blog/employee-monitoring-software-how-to-use-it-properly/

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  • ffreitasalves

    I started to monitor what my employees are doing on their computers and I realized a great productivity increase. I am using a software called Doingcast. Now, I am also using it as a telecommuting tool, so they can work from their homes some days in the week.
    http://doingcast.com

  • c hump

    I understand the employer owns your corporate email address while you are employed, what about if you terminate your employment/resign?

    For example I’m in sales, paid hourly plus commission and depart for a better opportunity similar industry.

    I have two issues with them keeping my email active and monitoring it after I am gone.
    1. My personal brand. In my industry my name means a lot to potential buyers as I have build trusted relationships for a number of years.
    2. They should not be allowed to use my name especially if a lead I nurtured becomes a sale due to my name and I’m not there or receiving the commission.

    If legal, is there any time restrictions on how long they can keep my old corporate email live?

    Thanks

  • I am not aware of any law on how long employers can keep a former employee’s email live and monitor it. I would expect for a sales position that it’s a common issue because they don’t want to lose a potential lead or have a pending deal drop.

    Since they control the account, there is not a lot you can do about it except inform people directly that you have left and give them your new contact information. If you have an enforceable noncompete or nonsolicitation agreement (or clause in the employee handbook), there may be additional issues that you should get an attorney’s help with before contacting former clients.

  • Jessica

    Do I have to post that I am video recording to my clients?

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  • Weston downing

    Recently there was a supervisor that our bosses put a hidden camera in his office. Without notifieing him.the office has his name on the wall outside showing that the office belongs to him. Is it illegal to do this in colorado

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  • Jason Brinker

    My brother’s payroll clerk at his job uses her personal computer to do their payroll. Many employees worry about their personal information such as social security numbers being on her personal computer. They have brought this concern to the owner and nothing has been done. What recourse do they have?

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  • Wendi Duran

    Monitoring employee is a popular strategy for employers. I think they may try EaseMon. It may help them in many ways. Thanks for sharing such an informative post.

  • Tom

    Can an employer sit and watch the cameras all day? Not for theft or safety reasons but just to pick on employees?

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  • Wang Sarah

    I was in trouble with my employees who often do some wasting-time work like playing games, chatting with others during the work time . Since I have the computer monitoring software I never have to worry about it. I can know these things at any time. It also has other many functions . You can have a try.

    http://www.imonitorsoft.com/

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  • Ava Compton Denney

    If i work at home and i bought my laptop for work can the company i work for legally monitor my laptop since technically it is a personal laptop.

  • more

    Can they see what websites you visit on a company tablet

  • Mary Tralongo

    My company records and listens in on our phone conversations with their client. I understand this is legal. I work at home on a company phone system. However, is it legal for them to listen to anything I say in between calls? For instance, call ends and my dog starts barking so I curse at him… the only other person listening is the client and I have been told we cannot talk or have any private convos even when we are not on a call. Is this legal?

  • Wendy Fuchs

    My employer at a retail furniture store records specific incoming calls from customers using a special phone number that is in an ad. The customer is informed that the call is recorded but the employees were not. Is this legal in Maryland?

  • campbell

    my employer took a video from my personal cell phone without my knoweledge or permission then my phone crashed, is this illegal

  • Skyeler Thompson

    Can Upper Management ask a regular employee to take a break from work to spy on another employee, i,m not to sure just what else is going on as a monitoring system but i have been looking everywhere for this question and i cant seem to find an answer, the managers aren’t doing the spying themselves there simply ordering their lackeys to do it for them and in-turns it has split the workplace straight down the middle people now are taking sides like its a warzone now its quite literally a poisoned workplace now there’s people taking weeks off for stress every 2 days of work just cause its that bad

  • Brooke B Nickerson

    Is your employer allowed to take your phone without your knowledge, then answer it without permission if someone calls you?

  • Jimmy Jimms

    ghostbusters!!

  • guest

    LOL!! she is an idiot!

  • oliver

    if you need the service of a professional hacker to help you track and monitor a phone you can reach out to gontarbradford@gmail.com he is the best for any form of hacking exploits of any such, you should try him out today.

  • damian

    gontarbradford@gmail.com is the best for any form of hacking exploits of any such.

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  • Gaetana Rohrer-Drake

    I write stories and poetry and left my personal notebook (NOT given to me by my employer). Well into the notebook I had written some concerns about the hotel where I work. I forgot to take it with me when I left. It was off in the corner of a counter, closed. My boss opened it, went through it and read my comments then sent me a text about them. Can she read my personal notebook?

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