Workplace Privacy

Technology has increasingly blurred the boundaries between our private and work lives. This means greater flexibility and autonomy. However, employers now have greater access to personal data and monitoring tools for online activity. Employees have privacy concerns regarding access to their sensitive information, but many are unaware of their employer’s policies or privacy rights under state or federal law.

Employee data privacy rights can vary from state to state. For legal advice about data privacy laws in the workplace, talk to an employment law attorney.

Workplace Privacy Policies

The right to privacy is a venerable and hallowed concept. However, if people think it extends to workplace communications performed on company-owned devices, they’re mistaken.

Employees may have an expectation of privacy at work, but it’s merely an expectation. Employer monitoring, reviewing, deleting, and disclosing electronic communications on company computer systems is an employer’s right. Employees who value privacy should use their own personal equipment.

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Read Your Employer’s Technology Policies

“Most employers’ policies say some key things,” says Paula A. Barran, founding partner of Barran Liebman, a labor and employment law firm in Portland. “‘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.”

“Many employers monitor phone calls now,” adds Mary Ellen Donnelly, an employment law attorney with Bond, Schoeneck & King. “The bigger companies might monitor employees for keystrokes to see how productive an employee is throughout the day. For some stored communications, the employer will actually take copies of emails and spot-check randomly what emails are being sent.”

The Electronic Communications Privacy Act (ECPA) provides some protections against unauthorized access to electronic communications. But it includes exceptions that allow employers to monitor communications if they have obtained consent or if the monitoring is conducted in the ordinary course of business. The application of the ECPA to company equipment depends on these factors.

Why Employers Monitor Employee Activity

Some of the monitoring practices relate to self-preservation. One employee’s careless web surfing could bring down a company’s entire computer network thanks to a virus. Phishing scams can lead to a company-wide data breach. Corporate damage could result from indiscreet revelations of trade secrets and confidential information.

Most data protection and monitoring of employee email and voicemail is by employers striving to keep secrets and nondisclosure within the walls of their research and development departments. Barran’s advice to employees: “If you want personal privacy, that’s why God created iPads.”

The Risks of Texting on Company Time

However, even when equipped with an iPad or a personal phone, employees can’t completely dodge scrutiny. Using personal devices prohibits an employee’s boss from examining messages produced on them. However, doing it during work hours might land workers in hot water.

“If it’s your own phone, and there is no stated written 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,” says Scott N. Hunt, a partner at employment firm Busse & Hunt in Portland. “But if you’re doing it at work and not for employment purposes, 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.'”

New Technologies and Employee Privacy Rights

Employee rights and privacy laws haven’t really caught up with employment practice rules.

“I’ve been doing appropriate workplace conduct training sessions for close to 20 years,” says Courtney Angeli, a Portland-based employment lawyer with Buchanan Angeli Altschul & Sullivan. “Even several years ago, there was very little talk of legal issues and things like social media policies, and the concerns about non-workplace conduct mostly involved holiday parties. Now we spend an enormous amount of time talking about the impact [of social media monitoring].”

In 2007, under the Bush administration, the National Labor Relations Board (NLRB) ruled that employers could lawfully bar employees from non-work-related use of their email systems. While a 2014 ruling briefly allowed employees to use work email for personal reasons, the NLRB overturned it in 2019. Today, employers can generally restrict email to business use only, unless it’s the only way for staff to communicate.

Personal Password Privacy

Employers generally have a right to passwords for any work-related social media accounts, such as LinkedIn. However, many states have passed laws forbidding employers from requesting personal social media account passwords.

In Oregon, employers can no longer demand personal social media passwords from employees, job applicants, or prospective employees. California, Illinois, and New York have similar password privacy state laws.

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.”

What Employers Can and Can’t Ask You About

The Equal Employment Opportunity Commission (EEOC) also cracks down on questions employers can ask job applicants about criminal history, disability, and recreational activities. However, many employers use online background checks to vet job candidates in the Internet age. They don’t have to ask; they can find.

“Things that a prospective employer ordinarily cannot ask in an interview, like religion or sexual orientation, can be found on social media,” says Laurie Berke-Weiss, an employment lawyer with Berke-Weiss Law.

She delivers a warning. “We all know that everything digital is like radioactivity: It has a half-life of 10,000 years. If you don’t want to see something again, watch what you post online.”

Find an Experienced Employment Lawyer

If you have questions about the use of social media in the workplace or creating sound social media use policies, contact an experienced employment law attorney in your area.