Workplace Privacy?

The right to privacy is a venerable and hallowed concept, one that began to take shape more than a century ago. 

But if people think it extends to workplace communications performed on company-owned devices, “They’ve got their heads buried in the sand,” says Chrys A. Martin, an employment and labor lawyer with Davis Wright Tremaine. 

“Every employee knows now that somebody can listen to their voice mail or tap into their email or sites they’ve been accessing,” she says. 

That is, every employee who’s read their employee handbook and company policies.

“Most every [company] has a policy,” says Paula A. Barran, founding partner of Barran Liebman, a labor and employment law firm. “And most employers’ policies say some key things: ‘This is ours, not yours; this isn’t private to you; if we want to, we can look at it; and if we want to, we can use anything that’s on it.’” Once information is put on the company’s electronic systems, she adds, “employees no longer have any privacy right to it, and the company is entitled to review it, print it, download it and use it.” 

Some of the monitoring can be chalked up to self-preservation. Consider that a company’s entire computer network could be brought down by a virus thanks to one employee’s careless web surfing. 

Another kind of corporate damage could come from indiscreet revelations of trade secrets. Martin says most monitoring of employee email and voice mail is by companies striving to keep secrets within the walls of their research and development departments. 

Barran says she knows of one company where equipment was seized as evidence after an employee was caught downloading child pornography. Her advice to employees: “If you want personal privacy, that’s why God created iPads.” 

But even when equipped with an iPad or a personal phone, employees can’t completely dodge scrutiny. Sure, using personal devices prohibits an employee’s boss from examining messages produced on them; but doing it on company time might land workers in hot water.

Scott N. Hunt, a partner at employment firm Busse & Hunt, notes, “If it’s your own phone, and there is no stated policy that they’ll access it, looking at that phone and examining the text is probably an invasion of privacy without the employee’s consent. But if you’re doing it at work, they don’t have to look at the text to get rid of you, they could just tell you, ‘Well, you shouldn’t be texting on company time. You’re out of here.’”

With rapidly developing technology, it’s understandable that privacy law hasn’t caught up with workplace rules. “I’ve been doing appropriate workplace conduct training sessions for close to 20 years,” says Courtney Angeli, an employment lawyer with Buchanan Angeli Altschul & Sullivan. “Even seven years ago, there was very little talk of things like social media, and the concerns about non-workplace conduct mostly involved holiday parties. Now we spend an enormous amount of time talking about the impact … of things like social media and non-work-related conduct, and the potential liability that arises from those kinds of communications.”

But at least employers can no longer demand personal social media passwords from employees and applicants, thanks to an Oregon law that went into effect on Jan. 1, 2014. (To date, more than 20 states have passed or are considering such a law.) 

Martin notes that there is really just one area in the workplace where an employee can truly relax and not expect to be monitored: the restroom. “That’s where you’d have an expectation of privacy,” she says. “But nowhere else on the employer’s premises.”