Employee Monitoring: Is There Privacy in the Workplace?
Employers want to be sure their employees are doing a good job, but employees don't want their every sneeze or trip to the water cooler logged. That's the essential conflict of workplace monitoring.
New technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications.
Can my employer listen to my phone calls at work?
In most instances, yes. For example, employers may monitor calls with clients or customers for reasons of quality control. Federal law, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. (See Electronic Communications Privacy Act, 18 USC 2510, et. seq., www.law.cornell.edu/uscode .)
An important exception is made for personal calls. Under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However, when employees are told not to make personal calls from specified business phones, the employee then takes the risk that calls on those phones may be monitored.
Privacy Tip: The best way to ensure the privacy of your personal calls made at work is to use your own mobile phone, a pay phone, or a separate phone designated by your employer for personal calls.
If I wear a headset, are my conversations with co-workers subject to monitoring?
Yes. The conversations you have with co-workers are subject to monitoring by your employer in the same way that your conversations with clients or customers are. If you wear a headset, you should use the same care you would if you were talking to a customer or client on the phone. Some headsets have "mute" buttons which allow you to turn off the transmitter when you are not using the telephone.
Can my employer obtain a record of my phone calls?
Yes. Telephone numbers dialed from phone extensions can be recorded by a device called a pen register. It allows the employer to see a list of phone numbers dialed by your extension and the length of each call. This information may be used to evaluate the amount of time spent by employees with clients.
Employers often use pen registers to monitor employees with jobs in which telephones are used extensively. Frequently, employees are concerned that the information gathered from the pen register is unfairly used to evaluate their efficiency with clients without consideration of the quality of service.
If you have a computer terminal at your job, it may be your employer's window into your workspace. There are several types of computer monitoring.
Is my employer allowed to see what is on my terminal while I am working?
Generally, yes. Since the employer owns the computer network and the terminals, he or she is free to use them to monitor employees.
Employees are given some protection from computer and other forms of electronic monitoring under certain circumstances. Union contracts, for example, may limit the employer's right to monitor. Also, public sector employees may have some minimal rights under the United States Constitution, in particular the Fourth Amendment which safeguards against unreasonable search and seizure.
How can I tell if I am being monitored at my terminal?
Most computer monitoring equipment allows employers to monitor without the employees' knowledge. However, some employers do notify employees that monitoring takes place. This information may be communicated in memos, employee handbooks, union contracts, at meetings or on a sticker attached to the computer.
In most cases, employees find out about computer monitoring during a performance evaluation when the information collected is used to evaluate the employee's work.
Electronic Mail and Voice Mail
Is electronic mail private? What about voice mail?
In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer’s favor. See for example:
When I delete messages from my terminal, are they still in the system?
Yes. Electronic and voice mail systems retain messages in memory even after they have been deleted. Although it appears they are erased, they are often permanently "backed up" on magnetic tape, along with other important data from the computer system.
My employer's electronic mail system has an option for marking messages as "private." Are those messages protected?
In most cases, no. Many electronic mail systems have this option, but it does not guarantee your messages are kept confidential. An exception is when an employer's written electronic mail policy states that messages marked "private" are kept confidential. Even in this situation, however, there may be exceptions. (See Smyth v. Pillsbury.)
Is there ever a circumstance in which my messages are private?
Some employers use encryption to protect the privacy of their employees' electronic mail. Encryption involves scrambling the message at the sender's terminal, then unscrambling the message at the terminal of the receiver. This ensures the message is read only by the sender and his or her intended recipient. While this system prevents co-workers and industrial "spies" from reading your electronic mail, your employer may still have access to the unscrambled messages.
Workplace Privacy Protections
What about my employer's promises regarding e-mail and other workplace privacy issues. Are they legally binding?
Not necessarily. Usually, when an employer states a policy regarding any issue in the workplace, including privacy issues, that policy is legally binding. Policies can be communicated in various ways: through employee handbooks, via memos, and in union contracts. For example, if an employer explicitly states that employees will be notified when telephone monitoring takes place, the employer generally must honor that policy. There are usually exceptions for investigations of wrong-doing. If you are not already aware of your employer's workplace privacy policies, it is a good idea to become informed.
In Smyth v. Pillsbury, the employee’s termination was upheld by the court, even though the company had a policy of allowing e-mail use for personal communications. In this case, the employee had sent messages to co-workers that were deemed highly inappropriate for workplace communications. (Smyth v. Pillsbury, C.A. NO. 95-5712, U.S. District Court for the Eastern District of Pennsylvania, Jan.18, 1996, Decided, Jan. 23, 1996, Filed. www.Loundy.com/CASES/Smyth_v_Pillsbury.html )
Are there any laws that deal with workplace privacy?
Currently there are very few laws regulating employee monitoring. If you are concerned about this issue, contact your federal legislators, especially the members of the House and Senate Labor committees in Congress. (See PRC Fact Sheet No. 18 "Privacy in Cyberspace," www.privacyrights.org/fs/fs18-cyb.htm.)