Legislation about Employee Monitoring

By Bernhard Mehl
May 05, 2020

As the digital age continuously evolves and expands, its impact on work cultures, ethics, and policies gets more complex every year. Many employees wonder what exactly the legislation entails when it comes to employee monitoring during work hours. As well as what impact it has on an employee’s privacy in the workplace. 

Employee Monitoring and Workplace Privacy Law

In most parts of the United States, employee monitoring is not regulated and legal. Like in most companies, if an employer provides an employee with a computer or other software on which to work, that property rightfully belongs to the employer. 

This means that the employer may perhaps listen to, watch, or read an employees’ workplace communication. They can also monitor the extent of non-work related activities during work hours. 

The Electronic Communications Privacy Act (ECPA) covers the right to digital privacy. This outlines the legality of the interception of digital and electronic communication between two parties. However, the Stored Communications Act (SCA) details the disclosure of communication. For the sake of conducting business, the ECPA allows employers to intercept communication on systems that belong to the employer.

However, employers can also access stored information pertaining to employee communication that was not recorded during business hours. In fact, most states don’t even require employers to notify their employees beforehand if they intend on monitoring their actions or communications during work hours. 

One thing to note is that in order to stay on the right side of the law it is best to construct new policies, such as a workplace video surveillance policy, if employers want to monitor their employees without any hiccups. 

Computer Monitoring in the Workplace

It is completely legal for an employer to review and monitor all actions on the company network. There are also many different types of software applications designed to help employers monitor their employee’s activities and work hours. The terms of legality do not change even when the employee marks certain correspondence as private. 

Work-related computers are not intended for personal use and employers often state that they will monitor usage. So, it is safe to assume that your employer could read your personal emails and other activities performed from a work computer.

If work emails are accessed from a company-owned computer, the law states that your privacy will not be protected. Even if you have password-protected personal folders in place. However, there are exceptions to any rule. 

If, for example, the correspondence of the employee is between another party that automatically protects the privacy of the conversation, then the company cannot enact a policy that challenges those privacy rights. A good example of this would be attorney-client privileges.

Video and Audio Recordings

Since video surveillance is a common security measure, video monitoring is legal. Even without the employees’ knowledge. There are some state laws that restrict having video cameras in certain places to protect the privacy of employees. These include places like washrooms or locker rooms. There may also be restrictions on how and why employers may record video of their employees. 

However, there are a few video cameras that also record audio. Audio recordings are prohibited unless consent is given. 

Tracking an Employee’s Phone

If an employee is using a company-provided phone, then it is within the bounds of the law for the employer to track and monitor the usage of that phone. The Electronic Communications Privacy Act, which deals with employee monitoring and workplace privacy law, stipulates under which circumstances employers can intercept calls and when they can use equipment furnished by a communication services provider.

However, employers should not monitor calls that are of a personal nature. In order for employers to ensure they are not overstepping these privacy laws, it is best to prohibit personal phone calls. Otherwise, the employer needs to clearly establish the specific circumstances in which they will monitor phone calls.

If an employer oversteps boundaries when it comes to privacy laws, an employee is within his or her full right to escalate the matter through taking legal action. If an employer uses monitoring equipment that was not bought by a communication services provider, but rather privately purchased or homemade, it would also be illegal if used for workplace surveillance

Best Practice

Legal teams can construct valid arguments against employee monitoring and also argue in favor of monitoring in a court of law. This is why companies, employers, and employees should do all they can to err on the side of caution. 

Understandably, companies want to control certain aspects of an employee’s behavior to optimize resources and efficiency. However, they should not be caught unaware when it comes to the legal consequences of their actions. If you are an employer and you are looking for ways to introduce employee monitoring in your company without losing the trust of your employees, we have a created a dedicated article for it.

Bernhard Mehl

Bernhard is the co-founder and CEO of Kisi. His philosophy, "security is awesome," is contagious among tech-enabled companies.