Employee Privacy vs. Workplace Surveillance: What Employers Can Legally Monitor

With the advent of new work environments which have emerged rapidly, it is becoming evident that employee privacy in the workplace will be a major issue of concern. As we become more digitally driven in customizing our workforces (hybrid work, remote access, constant engagement), it poses challenges for employers and employees in balancing employee privacy rights and business needs.

Digital transformation has changed the ways we work – from cloud-based tools and collaboration to mobile apps, to remote access and nonstop connectivity. Undoubtedly, some employers are making the decision to introduce additional workplace surveillance mechanisms, including CCTV cameras, email and social media monitoring, GPS tracking, and various performance monitors to increase productivity, security, and compliance in the workplace. But how do we measure workplace surveillance and draw the line as to how much is too much? Where do employee privacy rights end and employer rights in monitoring employees begin?

This blog will explore the critical issue of employee privacy in the workplace, including applicable U.S. laws, the extent to which employers can monitor employees in the workplace, and how employers and business can ethically balance employee right to privacy with employee productivity. If you are an employer, or a company, or an HR professional or an employee and you are curious about your privacy rights in the workplace and the monitoring activities of your employer, then this blog will assist you in clarifying some basic principles and offer practical approaches.

What Is Employee Privacy in the Workplace?

What do we mean when we say employee privacy in the workplace? Privacy in this context includes the employee’s right to keep certain personal and professional information private and free from unnecessary intrusion.

In the context of employment, privacy can cover a broad range of topics, including:

• Personal information (social security numbers, health records): This is sensitive information about employees that would need be confidential to protect their identity and health.

• Private communications (personal emails, phone calls): Employees have some right to privacy when engaged in their personal communication and messaging, even if that occurs at work.

• Physical spaces (lockers, desks): Personal spaces like lockers or desks should usually be respected and not searched, without cause or consent.

• Online activity on corporate devices: Employers may monitor internet usage or software usage on company-owned devices for security and productivity reasons, but should try to balance this with employee privacy.

The tricky part, is whether or not something is considered personal or professional information. For example, the browsing history of an employee using a work laptop could arguably be monitored; but, their personal phone is, generally, private. However, this becomes murky when personal devices are used for work obligations.

Recognizing these nuances is essential because of course respecting employee privacy creates trust and morale, and limits exposure to legal risk. In addition, it creates a positive company culture, cultivating an environment in which employees feel safe and valued.

Employee Privacy Rights Under U.S. Law

Protecting employee privacy in the workplace not only reflects value – it is the law. The nature of privacy rights is driven by both federal and state regulations, and there are a variety of items that employers must navigate.

Some of the central laws are:

• Electronic Communications Privacy Act (ECPA): This is a federal statute that prohibits employers from intentionally intercepting or monitoring any electronic communications, including email and phone calls. However, ECPA provides for some allowable monitoring if employees are adequately informed and give their consent. Electronic Communications Privacy Act(ECPA) is often used in disputes around workplace surveillance and email tracking.

• Health Insurance Portability and Accountability Act (HIPAA): This federal statute protects employees’ sensitive medical and health-related information. If employers deal with health insurance or wellness programs, they must take care to protect that information. Health Insurance Portability and Accountability Act (HIPAA) also reinforces employees’ privacy rights under U.S. law by preventing misuse and disclosure of confidential health records.

• California Consumer Privacy Act (CCPA): As a historic state law, California Consumer Privacy Act (CCPA) gives California employees substantial control over personal information collected by employers. Employees may request to access their information, request that it be deleted, and disclosed how the employer uses it—all of which enhances privacy rights in the office environment for state employees.

• Other state privacy laws: Some states, such as Illinois, New York, and Virginia, are all enacting their own privacy legislation, with the goal of limiting unnecessary and excessive monitoring, as well as data collection. Each of these areas of law are rapidly developing and vary by jurisdiction, making compliance increasingly more difficult for employers who operate in many locations.

Employers have legal obligations to respect employee privacy in the workplace through disclosure of monitoring practices and securing employee consent, when appropriate. Nevertheless, there are legal exceptions, such as when employers monitor the use of company-provided assets or review workplace communications for security or productivity purposes; as long as employees have been informed of these policies.

Striking a balance between employee privacy rights under U.S. law, while still achieving objectives for operational needs, is an integral component for compliance. Employers who fail to comply can face regulatory penalties and lawsuits; but more importantly, employers fail to win the trust and morale of their employees. A workplace that values employee privacy fosters loyalty and trust while minimizing the potential for conflict and reputational harm.

Understanding Workplace Surveillance

Workplace surveillance refers to the instruments and techniques that employers use to watch for productivity, safety, and security in the workplace.

Some workplace surveillance includes:

• Email and computer monitoring-tracking emails, browsing history, and keystrokes for productivity and data protection. There may be privacy issues for employees in the workplace if done without consent.

• Closed-circuit television (CCTV)-cameras in and around workspaces for safety and threat detection. Without good notice, this can be problematic for privacy rights in the workplace.

• GPS tracking- use of GPS tracking devices on company vehicles, to monitor where the vehicle is driven and how it is being used. Over reliant use can conflict with an employee’s privacy rights under U.S. law, especially if they are tracked when not at work.

• Phone monitoring- some phone calls that employees make are recorded for compliance or training purposes. Employees should be informed of what calls are recorded and/or monitored to avoid creating a false expectation of privacy.

Surveillance can support the safety and efficiency of employees; however, if done too often, too much, or secretively, this can arise distrust. While surveillance can provide security for the company, privacy is not entirely impugned in the workplace. The best way to promote or mitigate surveillance to privacy in the workplace is to provide employees with clear policies and good communication from the outset.

Privacy Rights in the Office: What Is Protected?

Workers do have privacy rights in the workplace, but there are limitations to those rights. The lines of what is protected and what is not can be subjective, as they can depend on the law, what company policy indicates, and the type of information or space in question. With these nuances in mind we must understand the protections in order to protect employee privacy in the workplace.

Typically protected can include:

• Personal Lockers and Bags: In general, these are treated as private property. Employers typically need consent or an valid legal reason to search personal items, as searching these can violate an employee’s reasonable expectation of privacy.

• Private Email and Phone Calls: Private communications that are labelled as personal—-even if otherwise on company devices and/or subjects—may be afforded limited protections under various laws in certain states and/or federal laws, especially surrounding employee privacy rights in the U.S.

• Personal Devices: By and large, many devices owned and used by employees are protected. Typically an employer can only have access to these devices when they can establish a clear work-related necessity or agreement to monitor. The use of personal devices for work can confuse the definitions, although protections typically favor the employee.

Privacy rights are limited in:

• Devices owned by the company: Employers can monitor (given the employee is aware) digital functions, in particular, emails, tracked browsing history and file access. This is a common element of workplace surveillance, primarily for productivity and security purposes.

• Common/public office spaces: Common spaces such as lobbies, hallways and break rooms are generally recorded on video. Courts generally allow for this as long as the video surveillance isn’t in private spaces – bathrooms and locker rooms.

• Work-related communications: Employers can legally monitor or review business emails, chat logs and recorded calls. Generally, if an employee has been made aware of the monitoring, the employer can monitor workplace communications to ensure they comply with business standards and practices.

Understanding what privacy rights are entailed in the office helps protect employee dignity and employer interests. This is important to support ethical, transparent, and legally compliant work practices, and builds the basis of employee privacy in the workplace.

Balancing Employee Privacy and Productivity

One of the greatest challenges for modern employers is balancing employee privacy and employee productivity. Employee monitoring is an essential part of ensuring efficiency, safety, and compliance but monitoring employees too much can lead to negative feelings from employees about being trusted or monitored too closely. Thus, having the perception in employees’ minds of low morale, higher turnover and feelings of a toxic work environment.

To balance employee privacy in the workplace while also meeting an employer’s business goals requires employers to implement ethical and open monitoring practices.

Ethical monitoring best practices include:

• Transparency: Transparency means that employers must always be clear about surveillance. Employers must have open dialogue and let the employees know what is being monitored, why monitoring is necessary, and how the information will be used. Transparency builds trust which encourages employees to not be fearful or uncertain.

• Limit the scope: Limit surveillance to only work-related tasks and only to the employer’s devices/software/work purposes, not in personal spaces or unrelated behaviors.

• Consent: Whenever practicable and particularly where legally required, obtain written employee consent for monitoring activities. Obtaining consent strengthens the ethical practice of the employer and fulfills the legal business obligations with respect to employee privacy rights under U.S. law.

• Clear Policies: Develop and distribute formal privacy and surveillance policies. These policies should openly describe the employees’ disclosure, detail the monitoring activity, explain how data is stored, among other things, and indicate who has access to the information.

• Open Communication: Establish opportunities for employee feedback. Establish and communicate a safe avenue for employees to raise, with confidence, privacy concerns, recommend improvements, or report violations, without fear of reprisal.

Common Privacy Violations and How to Avoid Them

Privacy breaches can erode trust and morale, and create legal headaches. Knowing what constitutes a breach will help employers prevent a disruptive and costly error.

Common violations include:

• Monitoring personal email and/or phones without consent: Even within the employer’s technology, tracking private messages violates the privacy rights of the employee, to a reasonable expectation. Under U.S. law, the employer must authorize their right to monitor before tracking any private communications.

• Inspecting lockers/personal things without notice: Employees would typically think they have a presumption to privacy regarding their lockers or personal things.

• Using surveillance for non-safety, disciplinary matters: Surveillance for safety and productivity is within an employers right; and if the expectations are clear in policy, it should be used to monitor safety. Surveillance should not be worn to monitor employees without giving employers advanced notice before surveillance occurs for disciplinary measures.

• Not advising employees of monitoring: Not advising employees that the employer can monitor trivializes trust and removes workplace ethics.

Prevent Privacy Violation Issues:

• Provide training to HR and managers about privacy laws: Periodic training sessions keeps assumptions about privacy rights in the office and what least legal ground employers can occupy without being sued.

• Have clear and distinctive policies about surveillance: Policies need to state who is being monitored, for, and through what means.

• Audit whether any surveillance is occurring appropriately or not: Assess how surveillance is monitored and how privacy is considered in any workplace context.

• Provide opportunities for anonymous reporting: Identify issues with privacy without fear of retribution.

Anything less disables a safe and respectful workplace around privacy and productivity.

Best Practices for Protecting Employee Privacy

A respectful and compliant workplace also means taking intentional steps to protect employee privacy in the workplace. For employer and organization, we have a responsibility to go beyond our legal obligation and foster a culture of trust, accountability, and transparency.

Here are essential practices to follow:

• Comprehensive policies: Have a written policy explaining what employee data is being gathered, how it is being used, and who has access to it. A well written policy can clarify expectations as well as help ensure that consistency is built into all employee data collection processes.

• Regular Audits: Regularly conduct an audit of monitoring systems and privacy policies. Periodic audits can assist with early detection of potential issues, provide additional ways to remain compliant with what is private (laws, regulations, internal policies), and is often welcome access for an oversight body to have compliant systems and standards.

• Training programs: Educate employees and managers about privacy rights in the workplace – even limits and rights on privacy – and how unknowing or negligent violators are typically the biggest problem.

• Technology safeguards: Using unified encryption, password control, and role based access can help to control sensitive employee information and reduce risks of data breaches.

• Anonymous Reporting: Have secure and anonymous reporting processes so staff can make reports and a report broadcasted where they have no fear of retaliation for raising issues or violations. Giving employees ways to articulate employee issues can prompt greater transparency of expectations, policies and accountability.

Following all of these ideal best practices can well demonstrate the employer’s commitment to employee privacy in the workplace while minimizing the ethical and legal risks posed to them. Staying ahead of potential risks will also serve to build better working relationships and trust with employees.

The Future of Employee Privacy and Surveillance

As emerging technology grows, so will employee privacy in the workplace. A number of new tools however, improve productivity, collaborations, and employee security, but at the same time presents new ethical and legal challenges.

Emerging trends to watch include the following:

• AI surveillance: Using artificial intelligence (AI), employers are now starting to monitor behavior and identify problems in employee performance. While AI is not necessarily wrong and can be useful in terms of working efficiently, it can feel grossly intrusive as boundaries do not clearly exist.

• Biometric scans: Having fingerprint or facial recognition to gain access to secure information is common now. The data intrusion of using biometric scan systems is sensitive personal data that must be protected and that is a challenge.

• Predictive analytics: Companies are engaged in modeling data related to their employees in order to identify and predict attrition or performance issues. While offering a unique model to be planned around, the greater risk is one of overreach in terms of analysis and potential bias as well.3

Conclusion

Employee privacy in the workplace is about more than just compliance—it’s about fostering an environment of trust and transparency. When employers respect privacy rights and conduct monitoring in a reasonable and responsible manner, they can create goodwill with employees, support and boost their workplace morale, and protect employees, managers, and the company.

As a reminder, you will want to ensure not only that your privacy drafting policies fully comply with the employee privacy rights under U.S. law, but also that you use and frequently review clear and fair monitoring practices and maintain clear and effective lines of communication with your employees.

So, is your company in the right balance between employee privacy rights and productivity?

Now is the time to take a fresh look at your practices and make your employees’ right to privacy a priority in the workplace.

FAQs: