Employment Law and Workplace Surveillance
Everyone is entitled to a certain level of privacy, but a reasonable expectation of privacy varies based on where you are and what you are doing. For instance, what’s reasonable in your own home is different from when you are riding a public bus or sitting in a restaurant.
The same is true for your work environment. You cannot expect the same level of privacy at work as you do in your own home or elsewhere. But this doesn’t mean you aren’t entitled to some level of privacy in the workplace.
How do you know what a reasonable expectation for privacy is in the workplace and what do you need to know about workplace surveillance?
Privacy Rights in the Workplace Might Be Fewer than You Think
Many employees are surprised to learn just exactly how much power their employers have when it comes to surveilling activities.
Employers are legally entitled to monitor just about everything you do at work, as long as they can show that it is important to the business. This includes surveillance efforts such as:
- Using video cameras
- Reading emails
- Monitoring phone conversations
- Utilizing GPS tracking
As long as your employer can prove the reason for the surveillance is more important than your expectation of privacy in the workplace, they are operating within the letter of the law.
It’s no surprise that this raises several questions about what you should expect in the workplace and what you need to know about your privacy when you’re at work.
For instance, you might be wondering:
1. Is my employer allowed to record or videotape me while I’m on the job?
Yes, your employer can videotape you while at work, but only if they can show it’s for a legitimate reason and only when the recording occurs in an area in which a person would not have an expectation of privacy.
For instance, it would be legal for an employer to record employees coming and going from the main lobby, but it would very likely be illegal for them to record employees in the bathroom. An employer’s right to record employees is usually protected when the recording device is visible, even when there has been no consent given to be recorded. The legal use of hidden recording devices has a higher burden of proof for showing it is being done for legitimate reasons.
Audio recordings are treated in a somewhat similar manner. Employers must show they have a legitimate reason for recording conversations in the workplace, but it’s often easy for employers to claim this is the case. Some states have stricter laws regarding the audio recording of employees and federal law prohibits audiotaping of union meetings.
For more information regarding video surveillance from state to state and how employers are permitted to use it, check out Video Surveillance Laws by State: Everything You Need to Know from UpCounsel.
2. Is my employer allowed to monitor telephone calls and emails?
Federal law protects an employer’s right to monitor business telephone conversations.
In some cases, employers forbid using company phones for personal use and if personal calls are made on these devices employees are at risk for having those calls monitored, too, though employers are expected to not listen in on personal calls.
There are variations in the protections provided to employees based on what they have consented to regarding phone monitoring and based on specific state laws.
Laws also vary regarding voice mail messages, but there is less protection in cases in which employees have heard voicemails but have not yet deleted them. Furthermore, employers are permitted to monitor voicemails and emails after they are deleted and can permanently back up and access this data in their computer systems.
In general, anything on your work computer screen can be monitored, including emails, your internet activity, the length of time your computer remains idle, and online chat conversations
3. Can my employer monitor my physical activity and location?
For many, this is the most disturbing of all the rights employers have for monitoring and surveilling activity because it means your employer can track your physical movements while on the job.
Many employers are installing GPS devices in company vehicles and monitoring the location, actions, and speed at which they are driving. There have also been instances of employers using GPS tracking to determine an employee’s whereabouts when they were on or off the job via their cell phones.
What Can You Do If You Think Your Employer Has Violated Your Privacy Rights with their Surveillance?
Despite laws tending to favor the right of employers to monitor employees while they are on the job, you still have certain privacy rights while working. If you feel your rights have been violated, you should reach out to an employment attorney and/or your state’s department of labor.
If you have questions or you’d like to speak to someone about your specific circumstances, contact New York employment lawyers Borrelli & Associates, P.L.L.C. to schedule a free consultation.