How much privacy does an employee have at work?

How much privacy does an employee have at work?

by Karen T. Hartline, December 2009

Every day, millions of Americans commute to work secure in the knowledge of certain legal rights: they cannot be fired for the color of their skin, paid less on the basis of sex, or goosed on the rear-end. But, in this technical age - when employers have conceivable access to emails, voicemails and confidential records - it may be time to start thinking outside of the cubicle when it comes to legal issues during the daily grind.

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 more vulnerable.

The federal Electronic Communications Privacy Act (ECPA) allows companies to monitor employee emails given one of the following scenarios: a need to protect itself, a legitimate business reason or 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. According to Mike Spykerman, CEO of Red Earth Software, which specializes in email policy enforcement programs, it is wise to check if a company has implemented a written email policy that warns of email monitoring, because, for all intent and purposes, the practice is legal.

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 an 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 his or her consent. Yet, when a recording blares "this call may be monitored" on so many customer service and sales lines, more often than not, it is. Employers may monitor conversations with clients without prior notification, according to federal law.

Personal calls are another matter. Once an employer determines a call to be personal, he or she is usually required to hang up. The gaping loophole is when an employee has been warned about making too many personal calls. This admonition may be grounds for the listener to be able to stick around for details.

A common argument on the part of employers for their free-wheeling access to personal emails and conversations is the issue of such personal business being conducted on company time and equipment. However, a growing list of companies no longer allow personal laptops and cell phones in their offices, so workers are with left few options for communicating with the outside world during business hours. As the traditional 8-hour workday morphs into a more rigorous 60-hour week, it is only natural that the number of personal calls will increase.

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. The National Labor Relations Act keeps bosses at bay when it comes to any worker's attendance and activity at union meetings and events. As a matter of fact, an employer is not even supposed to ask about a worker's life unless it is regarding an arrest or after-hours job that conflicts with the person's duties.

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. The laws concerning drug tests are much more concrete. While it is within a company's right to administer drug tests to job applicants, state law usually protects those already on staff from having to submit to such exposure.

The best work environments are those where the staff feels they are safe, free from worry about being recorded, watched or monitored. But the reality of today's workplace means they just might be. It falls to each individual employee to stay informed, and know the limitations of an employer's rights.