Legality of Workplace Monitoring & Surveillance

If you pay employees to do a job and provide a place for them to do it, the assumption is while they’re on the clock, they’ll be doing it. Unfortunately, that’s not always the case. Employers use workplace surveillance systems not only to be sure employees are working but also to maintain workplace safety, to ensure quality control standards are observed, and to prevent crime. But what about employees’ privacy concerns? What is allowed with regards to workplace monitoring and surveillance?

Why Companies Monitor Employees

Organizations have more to lose than just productivity. Common concerns involve the following:

  • The potential for workplace violence
  • Behavior that leads to workplace accidents
  • Viewing pornography using company technology
  • Using company equipment for personal business
  • Employees creating a data breach either intentionally or through carelessness
  • Forwarded emails and jokes that lower morale or could be viewed as sexual harassment

Employers also gather and store electronic records so they can produce documentation in the event of a lawsuit or other legal action.

Legal Restrictions

State and federal laws specify what employers can monitor and provide protection for employees. The Electronic Communications Privacy Act of 1986 (ECPA) protects exchanges when they’re made, while they transfer through a system or network, and once they are stored on a computer. It covers spoken, wire and electronic information, including email.

The ECPA has exceptions for that protection that benefit employers. The business purpose exception allows employers to audit oral and electronic transmissions as long as they can show a business reason for doing so. The consent exception says employers can legally monitor communications when the employee gives them consent. This exception applies to all communications, so it also covers communication using personal devices.

Violating ECPA standards can cause businesses to face civil and criminal charges. Civil penalties can cost up to $100 daily for each day employees can show monitoring was not in compliance, with a minimum penalty of $10,000. Employees can also seek to recover damages.

What Can Texas Employers Do?

The Fourth Amendment protects an individual’s right to privacy in their person, property, papers and other belongings, but employers can require that staff surrender some of those rights to get the job. Unless employers create the supposition of privacy, they can physically search anywhere on the property. In order to avoid the supposition of privacy, employers should disabuse employees of their right to privacy in any workplace areas and equipment.

Employers can read employee email if it comes through or is stored on a company server. However, if employees access their personal, password-protected email account on a company machine, they do have an expectation of privacy unless the employer informs them otherwise. Accordingly, employers should state to employees (in written policies) that employees have no right to privacy in any e-mail communication accessed or made on company equipment, including personal e-mail.

To monitor phone calls, employers should inform employees that telephone conversations can be monitored. They are also required to stop monitoring if they realize the call is personal, although they can issue discipline if personal phone calls are prohibited at work. The same conditions apply to voice mails, texts and video transmissions via cell phone, even when the company pays for the device.

Video cameras are allowed except in locations where there is an expectation of privacy, such as bathrooms or locker rooms. Employers can monitor internet usage, but there are some exceptions regarding social media sites. Administrators cannot terminate employees if they discover they’re complaining about their boss, their duties or their pay online since these issues are considered protected concerted activity by the National Labor Relations Board. There are other areas in which the NLRB has issued rules and employers should make note of those areas.

Simon | Paschal PLLC works with employers to navigate the privacy issue in Texas. Contact us to speak with an expert in employment law.

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