By: Justyn Trott
As we continue to live and work in the midst of a pandemic, it is apparent that the number of people working from home has increased to where almost every person that was once in person is now remote. Prior to this, employee monitoring technologies were becoming more common, especially as the rapid growth of digital technology has maximized the use of surveillance platforms.
Employers have normally relied upon workplace monitoring to use on their employees but now this has changed now that individuals can no longer come into the workplace. Employers have now been tasked with transferring their monitoring toward their employees who are now working from within their homes. So now the question lies as to where the line is drawn between monitoring for business practices and privacy within your own home?
“Employee monitoring” refers to the methods employers use to surveil their workplaces and their staff members’ whereabouts and activities. These methods include employee monitoring software, time clocks, video surveillance, GPS systems and biometric technology. Video surveillance, for example, can strengthen your business’s security and productivity. Catching a thief on camera certainly reduces the costs of loss inventory.
Employee tracking and monitoring systems serve other important purposes. The main goals behind them are to prevent internal theft, examine employee productivity, ensure company resources are being used appropriately, and provide evidence for any potential litigation. Then again, the real question is what happens when this monitoring power is taken too far, crossing the fine line of freedom and privacy.
Federal workplace privacy and employee monitoring regulations stem primarily from The Electronic Communications Privacy Act of 1986 (“ECPA”). The ECPA allows business owners to monitor all employee verbal and written communication as long as the company can present a legitimate business reason for doing so. It also allows for additional monitoring if the employee gives consent. However, the ECPA consent provision can be complex, as it might be understood that it also allows monitoring of employees’ personal communications as well as business ones.
Additionally, several federal court cases have determined that employers may legally look through employees’ emails after they are sent. That’s because the ECPA defines “electronic communications” as any electronic messages currently in transmission. Upon sending, these transmissions become “electronic storage,” which courts have determined employers can monitor.
In United States v. Ye Sang Wang, it was concluded that an employer has the ability to monitor electronic communications, especially when the employee consents to the monitoring. Here, the employee was issued a computer for work and signed a User Agreement, consenting to routine interceptions and monitored communications for purposes of misconduct and counterintelligence investigations.
This also included that the employer could “at any time” inspect and seize data stored on the information system, i.e., employee’s computer. Consequently, when there is improper use in the company’s systems it may result in disciplinary action including termination of the individual’s employment. In general, monitoring must be within reason. For example, video surveillance can be conducted in common areas and entrances. However, surveillance in bathrooms or locker rooms is strictly prohibited and opens a company up to legal repercussions.
Employers have been successful in making arguments when aggrieved workers have filed lawsuits for privacy violations. With the few court cases have largely been decided in the employers’ favor. Workplace rights advocates recommend that monitoring be relegated to narrow situations where there is “reasonable suspicion,” and that random or workplace-wide monitoring be prohibited. Whether a better balance will be adopted by employers is a serious question. Legislation is often motivated by “horror stories.” As workplace privacy abuses continue to make the news, there is always the possibility that a handful of precedent-setting court cases could change the landscape.
Under the ECPA, it is illegal for any person intentionally to intercept or endeavor to intercept any wire, oral, or electronic communication. 18 U.S.C. § 2511(1). It is also illegal for any person intentionally to disclose, or endeavor to disclose, the contents of a communication obtained in violation of ECPA. In Wilder v. Johns Hopkins Health Sys. Corp., the employer was monitoring workplace conversations made by the employees.
It is apparent that employers in general have the ability to monitor calls for quality assurance purposes, as long as it pertains to the ordinary course of the employer’s business. The employees were actively working when the employer was monitoring conversations including personal and private matters that had no connection to any course of the business. Therefore, crossing the privacy lines of the individual and taking the companies monitoring policies too far.
Employers must be mindful that many employees mistakenly think personal computer or phone use at work is private. A usage policy needs a clear statement that employees should not expect privacy with anything they put on the company network. Employers should also state that they cannot “guarantee privacy” of e-mail communications, or indicate that employees with e-mail access automatically waive any right to privacy in their electronic communications.
Maintaining a safe and efficient workplace requires organizations to keep a watchful eye on employee activities, which could pose harm to others or create liability for the company. Moreover, employees must be educated about monitoring so that they can understand the lack of privacy that currently exists at work. In addition, employers must explain to workers what they monitor.
Transparency is always a good practice, especially when it comes to companywide monitoring of employees. Since many employees feel uncomfortable being monitored, it’s important to be upfront about what the company hopes to accomplish and how surveillance is coordinated with your company’s goals. With any form of employee monitoring, it’s best to stay on the side of transparency and balance. It is apparent that with the continuous growth of technology, employee monitoring is here to stay. Therefore, ultimately there needs to be a middle ground or balance between the overall interest of the business and employee privacy.
Student Bio: Justyn Trott is currently a second-year law student at Suffolk University Law School, focusing in Intellectual Property Law. He is a staffer on the Journal of High Technology Law. Prior to law school, Justyn received a Bachelor of Science in Biomedical Engineering from University of Hartford.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
