Employee Privacy

Employers have an interest in protecting confidential information like company documents, records, and trade secrets. How far are employers allowed to look before it’s an invasion of privacy? Can your employer track your off-duty activities like social media or text messages?

In this article, we’ll cover the basics of employee privacy, including communications monitoring, drug testing, and more. You’ll also find links to other articles that dive deeper into specific employee privacy topics.

Employee Privacy Basics

You’ve probably heard of a constitutional right to privacy in the United States. However, this doesn’t apply to most workplaces. That’s because the Fourth and Fourteenth Amendments protect your right to privacy from overreach by the government. 

Constitutional rights to privacy apply to government workers, but they don’t extend to private employers. Private employees do have some protections through state laws, case law, and, for union members, their collective bargaining agreements.

Many employers use employee monitoring programs for business purposes and to increase productivity. New technology has enabled employers to track virtually all workplace communications made by employees using work computers, company internet access, and company email accounts.

In the simplest terms, you have no expectation of privacy on any company-owned device or vehicle. However, employers must abide by federal and state laws.

Employer Monitoring

In most workplaces, an employer may monitor or track employee information such as:

• Computer and internet usage
• Keystrokes and keyboard idle time
• When you arrive or leave work
• Number of emails sent from your work address
• Computer downloads
• Your computer screen

Some employee activities, including private conversations or personal items in restricted spaces like locked desk drawers, afford some privacy protections. Other activities, like recreational drug use, may lead to testing for substance abuse or safety concerns. Below are common issues of employees’ privacy rights in the workplace.

Telephone Privacy

Employers want to ensure appropriate customer service and that employees act within company policy. For the most part, employers have the right to monitor telephone calls placed during the ordinary course of business. Companies can also ask for written employee consent, but some limits exist.

Federal law, through 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.

Employers may monitor phone calls, but must stop listening and recording once it’s established that the call is personal. The ECPA also requires the employer to disclose that calls are being monitored. Civil liability penalties can be assessed through the ECPA for employers who read, disclose, delete, or prevent access to an employee’s voicemail.

Internet and Email Privacy

When using computers, electronic devices, and networks your employer owns, you have no reasonable expectation of privacy. This lack of privacy expectation applies to employees working from home or remotely on company devices. This means that even private messages may face screening by your employer if sent on the company’s network or computer.

Employers must have a valid business reason for monitoring an employee’s email or internet usage. These reasons include protecting trade secrets, blocking harmful spam, or evaluating the efficiency of current employees.

Employees may be asked to sign consent forms agreeing that the employer reserves the right to monitor internet and email usage at work or on employer-owned equipment. Read these disclosures carefully, paying attention to the details in the fine print. While your employer may not check your emails regularly, they are often archived for later screening.

Employers can block access to websites deemed improper. They can use tracking software to alert management to these occurrences.

Video Surveillance

Security video camera use has increased as the devices’ cost has decreased. Employers must notify employees, customers, and others that the premises are under video surveillance.

Workplace video recordings don’t usually include audio since it is illegal to record oral communications under federal wiretap laws. Companies may only use surveillance cameras for legitimate business reasons, such as deterring theft or violence. Cameras and two-way mirrors are not allowed in:

• Restrooms
• Break rooms
• Locker rooms
• Other locations with a reasonable expectation of privacy

For union members, the National Labor Relations Act (NLRB) prohibits employers’ use of video surveillance to track union activities. This ban includes usage in a way meant to intimidate union members.

Property Searches

Your employer may search your desk, office, and workplace locker if the employer’s interest outweighs your privacy rights.

Your person, bags, purse, and vehicle can be searched if your employer has probable cause. If another employee claims they saw you stealing valuable supplies, that could provide a legal reason for an employer to search your locker.

Privacy in the Hiring Process

When applying for a job and going through the hiring process, your employer will ask you to provide detailed personal information. You have a privacy interest in this information and have a right to keep it confidential.

Employers often, by law, need sensitive information, such as your Social Security number, date of birth, and other names you may have used. Employers must keep the contents of their employee files confidential. Only you and your supervisors should have access to it.

With your consent, they may run a background check. Background checks confirm your identity and that your background has nothing concerning that may make you unsuitable for the position. Your employer may impose other requirements, such as a drug test and medical records documenting a disability.

Social Media

Employers most likely will look at your social media accounts when going through the hiring process. Some employers will use social media when looking to recruit employees.

Several states, such as California, have laws that prohibit your employer from asking for your social media passwords. However, employers can conduct general searches to look for your accounts.

Employers must exercise caution when using social media in hiring decisions. Viewing a candidate’s social media may reveal sensitive information, like religious views. An employer viewing this information can raise discrimination concerns.

Drug Testing

Some companies may require random drug screening as part of your employment. Many states restrict an employer’s ability to enforce drug screening of existing employees. There are a few exceptions, including:

• Employees working in jobs that carry significant safety or health risks for themselves or others
• Employees involved in a job-related accident suspected to have involved the use of drugs
• Employees suspected of being under the influence on the job, such as slurred speech or bloodshot eyes

Employers may also require job applicants to take drug tests as a condition of employment. You always have the choice to refuse such testing. Refusal tends to eliminate you from consideration for the job.

Medical Information

Your employer may require medical information about a disability or medical condition  you may have. Your medical records are confidential. In handling these documents, they must follow the Americans with Disabilities Act (ADA). Employers must also comply with the Health Insurance Portability and Accountability Act (HIPAA).

Employers cannot use your health information to make decisions about hiring, promotions, or raises.

Questions About Your Workplace Privacy? Seek Legal Advice

If you have concerns about privacy issues related to your job or feel your employer has violated your privacy, speak with an attorney. An employment attorney specializing in employment privacy law can review your case and provide legal advice.

Learn About Employee Privacy

• Can Employers Use Video Cameras to Monitor Workers?: Many employers use video cameras to prevent internal theft, to have a record of any employee accident or injury, and for security purposes. Most video surveillance in the workplace is permissible as long as employers notify workers about it.
• Privacy at Work: Employee FAQ: Many employees have more limited privacy rights in the workplace than they might think. Find out what your employers can learn from your internet usage and what you can do to protect your privacy.
• Tests at Work: Your Rights: Employers often require drug tests as a condition of employment. Find out what rights employees have about drug screening and other workplace testing.
• Workplace Searches and Interrogations: Getting searched or questioned at work? You are not alone. Many people get searched at work for illegal substances and other activities. Find out your rights and how to enforce them here.
• Employment Law Terms: Definitions and explanations of all the most common employment law terms and abbreviations. These include the Family and Medical Leave Act, constructive discharge, garnishment of wages, and implied contract.
• Employees Rights 101: An overview of employee rights in the workplace, including laws against discrimination on the job, wage and hour regulations, and payday requirements.