How Much Privacy Does an Employee Have at Work?

Federal and state workplace laws

Both federal and state laws govern the employer-employee relationship and common problems that can arise, including racial discrimination, wrongful termination, and unfair compensation. In most states, an employee's right to privacy in the workplace applies to personal items, storage lockers, snail mail, and life outside the office. However, when technology enters the equation, the right to privacy becomes complicated—and is often dependent on state law.

Email monitoring

The federal Electronic Communications Privacy Act (ECPA) allows companies to monitor employee emails in the following scenarios:

1. The business needs to protect itself.
2. There is a legitimate business reason for monitoring emails.
3. The business has consent from the employee.

Given the vagaries of the language, however, there is plenty of room for employers to excuse tapping into and even intercepting emails. As an employee, it's wise to check if a company has implemented a written policy that mentions email monitoring. This may be found in an employment agreement or employee handbook.

Phone and voicemail monitoring and recording

Voicemail and phone conversations are also afforded minimal protection by the ECPA and the Omnibus Crime Control and Safe Streets Act of 1968. The ECPA states that an employer may be liable for obtaining, reading, disclosing, deleting or preventing access to any employee's voicemail messages that are in "electronic storage.

The ECPA also states that an employer may not listen in on personal calls unless the employee gives their consent. Yet, sometimes consent is implicit. I've you've ever been on the phone with a sales or customer service department and been warned that "this call may be monitored or recorded for quality assurance and training purposes"—more often than not, it is in fact being monitored. In some states, companies may monitor or record conversations with clients without prior notification, according to federal law. To avoid running afoul of state laws, companies generally operate in accordance with two-party consent rules.

Personal vs. business communications

Personal calls are another matter. Once an employer determines a call to be personal, he or she is usually required to cease monitoring. However, there's a catch: If an employee has been warned about making too many personal calls, this admonition may be grounds for the employer to continue listening.

A common argument on the part of employers for their open access to personal emails and conversations is concern about personal business being conducted on company time and equipment. However, a growing list of companies no longer allow personal laptops or phones in their offices, so workers are with left few options for communicating with the outside world during business hours. As traditional 9–5 shifts in the office become less standard, it is only natural that personal and business matters will blend as well—especially when working from home.

As an employee, it's always best to refer to your employee handbook and request written clarification of questions so you and your employer are on the same page about what you are and aren't allowed to do.

What employers can't do

Generally, any activities outside of work are off limits to an employer. While some state constitutions prevent employers from looking into employees' off-hour lifestyles, others do not stop the gathering of information, but prohibit it from being used against staff members at the office.

For instance, the National Labor Relations Act prevents retaliation against any worker who attends or participates in union meetings and events. As a matter of fact, an employer is not allowed to ask about a worker's life except in regards to an arrest or after-hours job that conflicts with the employee's duties.

This can change, however, if an employee presents themselves as a representative of the company while participating in personal activities, or if the employee uses company equipment for activities that would be prohibited at work.

What employers can do

Employers are within their rights to administer tests to their workforce, as long as the test is not deemed too invasive, including inquiries about religion and sexual orientation. There is little legislation that spells out which tests invade privacy, so it is often left up to the courts to decide on a case-by-case basis.

Laws concerning drug tests tend to be much more concrete, although they vary by state. It's common to require drug tests as part of pre-employment screening. Ongoing or random drug tests of current employees are less common. Generally, the conditions and consequences of a random drug testing policy must be very clearly described in employee literature, such as the employment agreement or employee handbook. It's common for employers to request a drug test after a workplace accident, although they must comply with state law and federal OSHA requirements.

Cultivating a healthy workplace

The best work environments are those built on mutual trust between employers and employees. But the reality of today's workplace means that some level of monitoring might just be part of the deal. It falls to each individual employee to stay informed and know the limitations of their employer's rights.