HR Management & Compliance

Employee Digital Privacy Rights and Expectations, Part 1

What rights do employees have in the workplace when it comes to the privacy of their digital lives? Can they expect that their e-mails won’t be read by someone else at the company? Does that answer differ for company e-mails versus e-mails that are personal but sent from a company device? What about texts sent on a company cell phone or pictures stored there?

These questions are not always simple, and there are precious few laws addressing the issue directly. Let’s take a look at why employers may want to have access to employee digital communications, and then review the few laws that relate to digital media and personal privacy.

Why Would Employers Want or Need to Monitor Employee Digital Communications?

There are quite a few reasons that employers would have the need to monitor or access employee communications. A good example is the gathering of evidence in preparation for a lawsuit. In any lawsuit, regardless of the subject matter at hand, it may be necessary to comb through employee communications to find information that relates to the case. This opens up the possible need to access all employee communications, both written and verbal. This alone is rationale for a company to have a policy outlining that the employer will retain control and access to all communications at all times.

Here are several other reasons employers may want or need access to employee communications, files, and other digital media:

  • Limiting legal liability and lessening the risk of harassment or discrimination. Monitoring and assessing communications is a way companies can limit liability by ensuring employees are not harassing or discriminating against others, especially if complaints are filed.
  • Reducing waste. Monitoring often encourages employees to cut back on using the Internet and company communications devices for too many personal items during the workday. Employers seek to ensure productivity remains up to expectations and that employees are not wasting company time on social media, gaming, conducting personal business, or making too many personal calls.
  • Monitoring for illegal activity. Employers have a vested interest in ensuring employees are not conducting illegal activity at the workplace, such as viewing illegal materials or participating in illegal activities.
  • Protecting the company’s reputation. By having access to all communications, employers can work to protect their reputation and company information by:
    • Ensuring employees are not disparaging the company, making false statements, or making promises that cannot be kept, and
    • Ensuring the employees are not divulging trade secrets or other confidential information.
  • Training. Monitoring of employee communications can be used for training purposes. For example, employers often record customer interactions and use them to train employees.
  • Quality assurance. Much like training, customer communications may be monitored to ensure that consistent levels of quality are being achieved and to confirm that employees are meeting expectations and standards in these interactions.

What Laws Relate to Employee Privacy?

Now that we’ve seen a few of the reasons employers would want or need access, let’s look at the other side of the coin: limits to that access. Believe it or not, there aren’t many limits when it comes to employers accessing their own data on their own servers or on their own devices. The laws that currently exist protect individuals from privacy intrusions on their own personal belongings and communications, but much of that does not extend to items or systems owned by an employer. Nonetheless, employers should understand what the laws cover.

The primary form of privacy protection is the Fourth Amendment to the U.S. Constitution, which protects individuals from unreasonable search and seizure. How does that apply to employees using employer equipment? The short answer is that it doesn’t—the Fourth Amendment is usually not a factor when it comes to the monitoring of employer-owned electronic devices and communications.

Beyond the Fourth Amendment, there are some laws that have been cited as potentially upholding privacy concerns, but employers and employees alike should understand that these laws do not always apply to employers monitoring their own devices and systems, either.

Here are some examples:

  • The Electronic Communications Privacy Act provides some protection for individuals because it makes it illegal to intercept private communications without consent. However, this typically does not apply to an employer-owned system.
  • The Stored Communication Act has broad protections regarding stored digital communications being made public by the service provider. However, yet again, this protection will likely not apply to conversations conducted on a company-owned device, especially if the employer has a policy that outlines the monitoring (and ownership) of such communications.
  • State laws. Like nearly all laws, there are varying state versions that often provide more protection than their federal counterparts. Be sure to check your state and local laws before making assumptions regarding any type of online information and its monitoring.

Generally, as long as the monitoring is being conducted for a genuinely work-related purpose, and it is being performed on employer-owned and controlled devices and networks, it is most likely permissible.

In Part 2 of this topic, we’ll take a look at specific information employers can monitor, and we’ll also discuss the importance of creating clear expectations regarding privacy (or the lack thereof, as the case may be).

Note: There are many aspects of employee privacy; digital privacy is just one component. When reviewing this information, remember that employees do have privacy rights in areas such as:

  • Medical information
  • Personal information
  • Unwarranted searches of personal items or storage spaces
  • Off-duty conduct (in some cases)

**This article does not constitute legal advice. Always seek legal counsel regarding your own unique situation.**

 


About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.