In a CER webinar titled “HR’s Monitoring Rules and Rights In California: Master E-mail, IMs, Blogs, and Social Networking,” Marc Jacuzzi outlined what is included in e-monitoring and explained the employee privacy laws at the federal and state level for California. Here are some basics.
What is E-Monitoring? Why Should We Use It?
What do we mean by “e-monitoring?” It includes:
- Video surveillance
- Audio recordings
- GPS tracking
- Monitoring emails and text messages
- Monitoring internet usage (including social media)
Why should employers participate in e-monitoring? Jacuzzi outlined several reasons during the webinar, including:
- Legal compliance (e.g., in regulated industries, such as telemarketing or banking, there may be a host of legal compliance requirements).
- Minimize legal liability (e.g., employee exposed to offensive material on co-worker’s computer could sue company for hostile work environment harassment).
- Measure employee performance and/or productivity (e.g., may record telephone calls or monitor emails to determine if complying with customer service standards).
- Security concerns (e.g., protection of trade secrets or other confidential information).
- Discourage misconduct (e.g., video cameras placed to discourage employee theft).
What Are the Employee Privacy Laws At the Federal Level?
What laws govern electronic monitoring of employees? In the webinar, Jacuzzi noted “this is an area that is evolving. Unfortunately, the technology evolved a lot quicker than the laws, and that’s not an unusual situation.”
One of the key federal laws is the Video Privacy Protection Act, which talks about the unlawful access to a “facility” through which electronic communication service is provided (e.g. a computer) to obtain access to electronic communications while in electronic storage. This is part of the Stored Communications Act (SCA).
In the webinar, Jacuzzi noted that “the Stored Communications Act states as follows: it is unlawful to intentionally access without authorization a facility – and what does that mean? A computer – through which an electronic communication is provided while it is in electronic storage, including interim or back-up.”
However, SCA does not apply to the entity providing the electronic communication service – such as company computers and the local area network, which is how employers can monitor communications on their own computers. (However, state laws are sometimes more strict.)
The Federal Electronic Communications Privacy Act is the other key law on this matter. It creates a private right of action for anyone whose wire, oral, or electronic communication is intercepted by a civilian. Jacuzzi clarified: “what does that mean to be intercepted? Does it have to be recorded? The answer to that is no. So, just listening in – eavesdropping – is a violation.” However, if one party to the conversation consents to the recording or interception, then there is no violation of the law, provided it was not recorded or intercepted for the purpose of committing a criminal or tortious act.
Again, however, we will see that state laws differ.
What Are the Employee Privacy Laws At the State Level for California?
The California State Constitution, Article I, Section 1 is the genesis of all California employee privacy law. It states that persons in the state of California have the right to privacy, and may bring claim for invasion of privacy. This is a very broad statement. This applies in purely private employment settings. To bring invasion of privacy claim, plaintiff must establish a legally protected privacy interest; a reasonable expectation of privacy in the circumstances; and conduct by defendant constituting a serious invasion of privacy.
Another way California employee privacy laws differ from the federal laws is with the California Invasion of Privacy Act. This Act requires the consent of all parties to conversation before it may be recorded, rather than just a single party consent. However, only confidential communications are protected. In other words, the party must have an objectively reasonable expectation that the conversation is not being overheard or recorded.
What does this mean for California employers? It means that you must get all parties’ permission before audio recording telephone calls or conversations. Additionally, if you have video surveillance, do not record the audio and provide public notice of the video monitoring.
The above information is excerpted in part from a CER webinar titled “HR’s Monitoring Rules and Rights In California: Master E-mail, IMs, Blogs, and Social Networking,” with expert Marc Jacuzzi. To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.