Where Are You Safe from Workplace Monitoring?

If you’re reading this at work, you might want to sit down. Or at least look over your shoulder. 

“The law is extraordinarily unfavorable as it relates to employee privacy and monitoring practices,” says attorney Qusair Mohamedbhai, who represents employees in discrimination and civil rights litigation at Rathod Mohamedbhai. “Anytime personal information is entered through an employee’s computer, employers have been successful at lawfully intercepting and obtaining that information. As a best practice for employees, it should be understood that there is virtually no workplace privacy.”

Computer monitoring is allowed to view employees’ email, online activity and install monitoring software (sometimes to the point of capturing keystrokes to monitor employee productivity), as well as their personal devices (if sponsored or reimbursed by the employer). They can use GPS tracking to monitor company cars (or even personal vehicles used for company business). 

“Generally speaking, with permission, you can [monitor employees]—particularly if it’s for a legitimate business reason,” says John Husband at Holland & Hart, who counsels businesses on employment matters and legal issues. “But if it’s not for a business purpose or during work hours, the employer can’t monitor. It’s personal.”

Want to talk all this over with your attorney? You might not want to do it on a company computer. “Courts have even ruled that an employee writing to their attorney over company email is potentially a limited or complete waiver of the attorney privilege,” Mohamedbhai says. He advises anyone attempting to communicate with an attorney to do so on their own time with their own device. “Don’t even use the company Wi-Fi. It’s gotten to that point.”

So is there any place at work where you’re safe from prying eyes? 

“There is still the common-law reasonable expectation of privacy—like use video surveillance to watch your employees take showers in locker rooms,” Husband says. “Or if you give them a desk that has a lock on it, you can’t rip the lock off and see what’s in there.” Then he pauses. “Now—as an employer, though—let’s say you suspected an employee was selling drugs. Then you could ask them to unlock the desk. Likewise, if you have the company car and [your employer] suspects you have engaged in illegal activities, they can ask to see the trunk, and if you refused you could be fired.”

And if you’re on social media, you’d better monitor yourself. Husband says employers can take action against employees who complain about their bosses or their companies’ products on Facebook or Twitter. A sugar-coated Instagram profile can be equally problematic. In termination cases, Mohamedbhai says, “employers will access, or discover in litigation, social media to argue that an employee is happy—and not emotionally distressed. Unfortunately, this strategy can be effective. Juries tend to hold people to what they write on social media. My advice to my clients is that social media should always be set to the highest possible privacy setting, and sparingly used if there is the potential of litigation. Employees should expect that everything they write on social media can and will be used against them.”

Medical information, says employment law and civil rights attorney Diane King at King & Greisen, is one of the areas in which employees have the most employee rights. She says employers do have the right to know, for example, the basis of an employee’s request to take medical leave, but they are required to keep that information confidential.

She also points to the federal Genetic Information Nondiscrimination Act of 2008, federal law limits disclosure of genetic information and prevents employers from using any such information in making employment decisions. “They can’t draw your blood and find out that in 10 years you’re going to have a tendency toward any kind of illness,” King says. 

Where are the gray areas? “There is a raging issue in employment law with regards to how much information an employer can get with regard to your credit status and how they can use it, and that’s a very murky area these days,” King says. The nearly five-year-old Colorado Employment Opportunity Act, state law prevents employers from requesting or using credit histories in employment decisions, but the rule does not apply if the credit information is considered “substantially related” to the job.

For more information about this area, see our overview on employment law for employees.