Privacy in the Workplace: Understanding the Legal Boundaries of Workplace Monitoring
Introduction
In today's digital workplace, employers have unprecedented abilities to monitor employee activities, communications, and performance. This becomes even easier with new AI tools monitoring employee activities. While monitoring can serve legitimate business purposes like security, productivity assessment, and regulatory compliance, it can raise significant privacy concerns for employees.
This guide explores the legal boundaries of workplace monitoring in the United States and abroad, providing both employers and employees with clarity on rights, responsibilities, and best practices.
United States: A Patchwork Approach
The United States (unfortunately) still lacks comprehensive federal workplace privacy legislation, resulting in a patchwork of laws that vary by state and context and increased complexity when understanding which laws may apply to you.
What’s important to note is that, in the workplace (physical and digital), there is no reasonable expectation of privacy outside of areas like restrooms and others where the right to privacy is the default. To avoid abuse of the exceptions, federal and state laws do have limitations and requirements pertaining to what employers can monitor and how they must inform employees.
Electronic Communications
The Electronic Communications Privacy Act (ECPA) addresses the monitoring of communications, generally prohibiting the interception of electronic communications but includes significant exceptions for employers:
The Business Purpose Exception allows monitoring if there is a legitimate business justification.
The Consent Exception permits monitoring when employees have given consent.
Many employers include consent to monitoring in employment agreements or policies, which courts have generally upheld. This applies to communications like email, phone conversations, and data stored electronically.
This law is the primary reason why it’s critical to keep your work and personal activity on separate devices.
State Laws
Some states provide stronger protections:
California's privacy laws, including the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA), grant employees certain rights regarding their personal information.
Connecticut and Delaware require employers to notify employees of electronic monitoring.
New York enacted a law in 2022 requiring employers to notify employees of electronic monitoring upon hiring.
When it comes to state laws, always look up what applies to you. If you are remote, regardless of where the company HQ is, you should check your local jurisdiction for what laws and regulations apply to your location. When determining the laws that apply, make sure to check how many employees/company size triggers the need for compliance with certain laws.
Video Monitoring
Video surveillance in the workplace is generally permitted in public areas but prohibited in places where employees have a reasonable expectation of privacy (bathrooms, changing rooms, etc.).
Generally, companies must post surveillance notices in a conspicuous place and ensure cameras are visible to individuals in the area being monitored. Check your state laws for other restrictions such as limiting the recording of audio or where surveillance can be conducted.
Biometric Data
Several states have enacted biometric privacy laws:
Illinois Biometric Information Privacy Act (BIPA) requires informed consent before collecting biometric data.
Similar laws exist in Texas, Washington, and other states.
Phone Calls
A state will either be a “one-party state” or “two-party state.” The difference between the two is regarding how many people involved in the conversation must consent to monitoring via phone. Two-party states require consent from all individuals involved in a conversation.
Computer Use
Since 2020, there has been a rise in digital monitoring which includes email, internet, and general device activity. When it comes to using company-issued devices, there is no reasonable expectation of privacy, so always be mindful of your activity. Most companies have written policies in their handbook - be on alert if your company does not have such a policy or does not communicate their policies. In these cases, it is helpful to ask your IT department to understand what is and isn’t monitored.
Pro-Tip: Companies that don’t define a monitoring policy raise a red flag. This is a standard business practice and compliance with these federal/state laws is mandatory.
NLRA and Monitoring
Under the National Labor Relations Act (NLRA), employers are prohibited from using monitoring in the workplace to interfere with, restrain, or intimidate employees that are exercising their rights protected by law.
Social Media
Most companies now have social media policies within their employee handbooks. Generally, companies are not allowed to ask for login credentials from either employees or applicants. Social media use and discussions around working conditions can get extremely complicated, so make sure you check for all relevant laws and regulations before posting anything controversial.
Some employers will mandate employees post on the employer’s behalf by posting reviews or re-posting announcements. This is not something that they can force you to do.
Personal Devices
If you use a personal device for work activities, make sure to check your employer’s policies. Technically, your work-related activities can be monitored during defined working hours if on a personal device, and IT will usually put in safeguards to ensure that personal activity is excluded from any monitoring/logs and that activity off-hours are not monitored.
Best Practices for Employers
Below is a list of best-practices for employers. Keep in mind that privacy laws are constantly changing, especially with the rise of AI-powered monitoring and HR tools. Being aware of what your employer should do is the first step in understanding whether or not your rights are being violated:
To navigate the complex landscape of workplace privacy laws, employers should:
Develop Clear Policies: Create and communicate detailed policies regarding workplace monitoring. (usually in the employee handbook)
Obtain Informed Consent: Where possible, secure employees' informed consent for monitoring activities.
Limit Monitoring Scope: Only monitor what is necessary for legitimate business purposes.
Respect Private Spaces: Avoid monitoring in areas where employees have reasonable expectations of privacy.
Maintain Transparency: Be open with employees about monitoring practices and purposes.
Secure Monitored Data: Implement robust security measures to protect data collected through monitoring.
Stay Updated: Regularly review and update monitoring practices to comply with evolving laws.
Employee Rights and Remedies
Employees concerned about workplace monitoring should:
Review Company Policies: Understand the organization's stated monitoring practices. Ask your HR and IT departments if anything is unclear.
Check Employment Agreements: Review any consent provisions in employment contracts. If you feel unsure, check with a legal professional before signing.
Know Local Laws: Familiarize yourself with applicable privacy laws in your jurisdiction. Local and state regulations expand upon federal protections.
Document Concerns: Keep records of potentially problematic monitoring practices.
Raise Issues Internally: Address concerns with HR or management when appropriate, in writing.
Seek Legal Advice: Consult with privacy attorneys for potential legal violations or concerns.
Future Trends in Workplace Monitoring
As technology evolves, new privacy challenges emerge:
Remote Work Monitoring: The surge in remote work has led to increased interest in productivity and communications monitoring software.
AI and Algorithmic Management: Automated decision-making systems raise concerns about transparency and bias. These are frequently seen being used in performance management and hiring processes.
Biometric Authentication: Fingerprint, facial recognition, and other biometric systems present unique privacy concerns.
Wearable Devices: Health and activity tracking through employer-provided wearables creates new privacy questions and can subject employers to laws like HIPAA. Do your research before using these devices and understand how your data is stored, processed, and is used for decision-making.
Conclusion
As workplace monitoring technologies advance, both employers and employees must stay informed about evolving privacy laws and best practices. As an employee, it’s critical to understand your rights in order to identify when something goes wrong. Employers must balance legitimate business interests with employee privacy rights in order to maintain the trust of the workforce.
At Privacounsel, we help employees understand their rights at work and find the right information and support when things go awry.
Have questions about your employer’s monitoring and digital surveillance policies? Reach out to one of our HR experts to get help today.
Disclaimer: This guide provides general information only and should not be construed as legal advice. Laws vary by jurisdiction and change over time. Consult with legal counsel for advice on specific situations.
