Employee privacy rights are the rules that limit how extensively an employer can search an employee’s possessions or person; monitor their actions, speech, or correspondence8 min read

Updated August 12, 2020:

What Are Employee Privacy Rights?

Employee privacy rights are the rules that limit how extensively an employer can search an employee’s possessions or person; monitor their actions, speech, or correspondence; and know about their personal lives, especially but not exclusively in the workplace. The nature and extent of these protections have become a greater concern in recent years, especially with the rise of the internet and social media. Many of these means of communication may seem private, but in truth, there is hardly any real privacy to be had with them. Employers can usually search through anything that appears on company computers, and they can conduct searches of social media and the internet, as well.

Employment law covers all the obligations and rights concerning the employer-employee relationship, regardless if one is a current employee, former employee, or job applicant. This type of law involves legal issues including wrongful termination, discrimination, workplace safety, taxation, and wages. Many of these issues are governed by applicable federal and state law. Where the employment relationship is based on a valid contract made between the employer and employee, state contract law alone may dictate the rights and duties of the parties involved. The rights of public employees, on the other hand, may differ from the rights of private employees.

Employees may have subjective expectations of privacy due to passwords, information segregation, or the use of electronic lockboxes, but an employer’s policies may eliminate any objective expectation of privacy, and some technology might simply not be considered private. Because laws related to employee’s privacy expectations have not caught up with the technology available to employers, privacy claims have to be evaluated carefully case-by-case within the workplace.

Employee privacy rights include an employee’s activities at work and personal information, but company policy will often dictate those rights. Technology lets employers keep tabs on many aspects of employee workplace activity. Numerous kinds of monitoring are legal, and most employers do monitor their employees’ activities on some level. Many technologies allow employers to observer their employees’ "digital footprints" and thereby gain insight into employee behavior. Nearly any activity on your office computer can be monitored, almost completely without regulation. The employer may watch, read, and listen to most of the employee's workplace communications. Employees should remember that when they use an employer's equipment, there expectations of privacy should be limited.

Internet and Email Privacy at Work

Private companies have the right to monitor the email, computer, and phone of their employees. Therefore, it is recommended that all policies regarding monitoring be documented, well-defined, and require written acknowledgement by employees. If there are email and computer monitoring policies, these need to state clearly that employees should not expect privacy when they use their employer’s resources or are on their employer’s property.

Since employers typically don't have the time or resources to monitor every employee, they often block access to websites deemed irrelevant to the work at hand or improper in general, or they use tracking software that alerts them to violations. Employers can also use various programs that let them see their employee’s screen in real time or what is in the employees' hard drives and computer terminals. Employers can also keep tabs on internet usage, including email, which includes private messages sent outside the context of work. While it may not be checked regularly, it is often archived in case it must be searched later. Additional monitoring includes technology that tracks idle time at the terminal and how many keystrokes an hour each employee performs, the latter of which can even show if employees are below or above the expected number of keystrokes.

Telephone Privacy at Work

Employers have the right to monitor telephone calls placed to and from their locations, although some limits do apply. The Electronics Communications Privacy Act (ECPA) prohibits employers from monitoring employees' personal phone calls even if the calls were made or received on an employer's property. The Act also requires the employer to disclose the fact that calls are being monitored and makes it a civil liability for employers to read, disclose, delete, or prevent access to an employee's voicemail. That said, employers may listen in on calls to customers or clients to monitor for quality control, but when a party receiving a call is in California, state law says they must be told that the call is being monitored or recorded. Numbers dialed from phone extensions can also be monitored with a pen register device. This lets employers view a list of phone numbers dialed through the extension and how long each call was. This information can be used to evaluate how much time an employee spends with clients.

Video Surveillance and Employee Privacy

Private companies have the right to monitor their employees by camera, including in a parking structure for both security and employee safety. However, employers are required to notify employees, customers, and all others in the range of the cameras that their property is under video surveillance. By law, video recordings must not include audio, as this violates federal wiretap law regarding oral communications. Furthermore, surveillance cameras must only be used where there is a legitimate business need to deter violence or theft (including internal theft) or to monitor employee productivity, and they generally may not be used in break rooms, restrooms, locker rooms, or other locations where it is reasonable to expect privacy. Additionally, The National Labor Relations Act (NLRB) prohibits employers' use of video surveillance to monitor the union activities of employees.

Drug Testing

Private companies have the right to test their employees for drugs and alcohol, but records of these tests cannot be legally released, and many states restrict an employer's ability to enforce drug screening of existing employees. There are a few exceptions, however, and they include:

Employees working in jobs that carry substantial safety or health risks for themselves or others.

Injured employees whose job-related accident is suspected to have involved the use of drugs.

Employees suspected of using drugs on the job, such as slurred speech or bloodshot eyes.

Policies regarding the when, how, and why of these tests do not fall under law enforcement. That said, any company should clearly state its drug policy to protect itself from lawsuits.

Employee Rights in the Workplace

Basic workplace rights extend to every employee, and these include the rights to freedom from discrimination, fair compensation, and privacy. Job applicants also have rights before they are hired, including the right to not have to face discrimination based on gender, age, race, religion, or national origin during hiring. Employees have a right to privacy in the workplace, as well. This right applies to the worker's personal items, which include briefcases or handbags, as well as storage lockers and private email accessible only by the employee. Other employee rights include:

Being free from harassment and discrimination of all types.

Being able to expect a workplace free of toxic substances, dangerous conditions, and other safety hazards.

Being free from punishment for making a complaint or claim against a company (sometimes known as "whistleblower" rights).

Being able to expect fair wages for one’s work.

Federal Regulations Regarding Employment Relationships

There are many federal laws regarding employment. A quick overview is as follows:

Title VII of the Civil Rights Act of 1964

Applies to employers that have 15 employees or more.

Bars employers from discrimination during hiring based on color, race, national origin, religion, or sex.

The Americans With Disabilities Act (ADA)

Defines a disability as a mental or physical handicap that greatly curtails one or more major life activities.

Bars discrimination against someone who has a qualified disability.

States that if a handicapped person can perform their essential job functions with or without reasonable accommodation, they cannot face discrimination because of their disability.

The Age Discrimination in Employment Act

Prohibits employers from showing favoritism to younger employees at the expense of older ones.

This applies only to employees 40 years old or older in workplaces with 20 or more workers.

Does not prohibit an employer from preferring older workers over younger ones.

The Fair Labor Standards Act

Regulates the duration of workdays and how many breaks an employer must provide.

Governs overtime requirements and applicable salary as laid out by federal law.

The Family and Medical Leave Act (FMLA)

Requires employers to let employees have up to 12 weeks of leave of for approved medical reasons.

Says that to meet the requirements for the leave, the worker must have worked for the employer for 12 months and for 1,250 hours in those 12 months prior to the leave.

Bars employers from replacing qualified workers during their leave.

Job References

Concerning job references, the law does not protect a private company’s employee information from being disclosed to a prospective employer. That said, it is not a good idea to give out employee information, including a worker’s full name, date of birth, Social Security number, pay level, or work schedule. It is also recommended that one document and researches those who request information and why they do so, and that an HR employee should handle the inquiry. Getting written authorization from the employee before releasing any information is also advised.

Personal Searches

Private companies can have a policy that lets them search for an employee, their workspace, or their property, including their car if it is on company property. However, a personal search may be cause for a variety of legal actions against an employer, and bodily searches run an especially high legal risk and should never be conducted by force.

GPS Tracking

In general, employers can use GPS to monitor employees while they are using company-owned vehicles, as well as place GPS on employer-owned equipment, where there is no reasonable expectation of privacy. However, Minnesota, California, Texas, and Tennessee have laws barring employees from using GPS to track individuals, although such laws do not include barring the installation of GPS devices on company-owned cars. Cellphone tracking may be used by some employers to keep tabs on their employees’ locations.

Postal Mail

Generally, mail addressed to you at your office can be opened by your employer. Federal law bars mail obstruction, but once the mail arrives at the workplace, it is deemed delivered. The USPS Domestic Mail Manual has this to say regarding the topic:

“All mail addressed to a governmental or nongovernmental organization or to an individual by name or title at the address of the organization is delivered to the organization, as is similarly addressed mail for former officials, employees, contractors, agents, etc. If a disagreement arises where any such mail should be delivered, it must be delivered under the order of the organization's president or equivalent official."

After the mail is delivered by USPS to your company, it is up to them how it is distributed. There may be some limited situations where reading a worker’s mail may constitute an invasion of one’s privacy, but these would be very specific and guided by common law principles of tort law.

Monitoring of Social Media

Numerous companies have policies regarding social media that restrict what the employee can post about the employer on social networking sites. Compliance Building is a website that provides a database of social media policies for many companies. In some states, there are laws that bar employers from punishing an employee because of activity on social networking sites outside of company time, unless said activity can be shown to be damaging to the company. Generally, posts that refer to work can be considered damaging, and so should be avoided by employees.

The National Labor Relations Board (NLRB) has published many rulings regarding issues related to the social media policies of employers, and it provides the following guidance:

Company policies should not bar activity protected by federal labor law, like the discussion of working conditions or wages amongst workers.

A worker’s social media comments are generally unprotected if they are minor complaints not related to a group activity with employees.

Many states have passed laws protecting job applicants from organizations that insist they provide a password or username to access a social media account.

Resources

Several organizations are highly involved in workplace monitoring policy and promote greater government regulation of worker monitoring. They often can assist employees who are having privacy issues in the workplace:

The National Work Rights Institute

166 Wall St. Princeton, NJ 08540

(609) 683-0313

www.workrights.org

The National Association of Working Women

207 East Buffalo St., #211

Milwaukee, WI 53202

(414) 274-0925 or the hotline at (800) 522-0925

www.9to5.org

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