With the continuing rise of technological innovations in recent years, employers increasingly have the ability to monitor employees in the workplace. As a result, just how far employers can go in terms of monitoring their employees has become a rather controversial issue. In most cases, employees’ personal cell phone usage, personal telephone calls, and text messaging can potentially be legally accessible to employers if conducted in the workplace. Likewise, employers typically are within their rights for observing employees in the workplace using surveillance technologies, and to order employees to undergo drug testing.
As email usage and other types of electronic communication become more and more a part of many employees’ everyday lives, both on a professional and personal level, many employees have an expectation of privacy in these types of communications. However, when employees use property owned by their employers that they are permitted to utilize for business purposes, personal privacy laws are largely inapplicable. When using business equipment, whether or not the usage is during business hours, employees simply should have no expectation of privacy in their communications. On the contrary, many employers use these communications in order to monitor employee productivity, improper usage of equipment, and other types of employee misconduct. Therefore, an employee should never expect that such communications will remain private.
Telephone calls, however, do trigger some protections under federal privacy laws. Even an employee who makes or receives a personal phone call using an office phone or company-issued cell phone has an expectation of privacy in terms of the content of the personal conversations pursuant to the Electronic Communications Privacy Act (“ECPA”). Under the ECPA, an employer may be liable for monitoring an employee’s private telephone calls, as well as any voicemail messages. Therefore, an employee’s expectation of privacy with regard to telephone communications varies markedly from that of other types of electronic communications.
Some employees also find themselves subject to video cameras, wiretapping, and other types of electronic surveillance in the workplace or when conducting business. While there are some restrictions on this type of employer surveillance set forth by state and federal law, an employer does generally have the right to observe an employee in work areas. For instance, an employer clearly violates the law if surveillance is present in an area where employees have an expectation of privacy, such as a restroom or locker room. Federal and state wiretapping laws also generally require that an employee be told that a conversation is being recorded. Nonetheless, an employer does have the right to monitor employee activity in the workplace, at least to some degree.
An employer’s authority to require employees to undergo drug testing depends not only on the reasons behind the requirement, but also the law of the state in which the employer is located. Some state law place fairly significant limits on the type, frequency, and manner in which an employee can be drug tested. However, so long as an employer has a formal drug testing policy in writing that is given to all employees, and which clearly sets forth the circumstances under which such testing can occur, drug testing is probably permissible for most employers in most jurisdictions. Some examples of drug testing in the workplace that are probably acceptable include a suspicion of drug or alcohol usage during business hours, workplace accidents or injuries that may be attributed to drug or alcohol use, or positions that carry great risk to others if an employee is impaired in any way.
The bottom line is that while employees have a right to expect privacy in their telephone conversations, electronic communications, video surveillance, and drug testing tend to be areas where employers are free to create their own policies. Due to an employer’s interest in ensuring that its employees are productive, ethical, and acting in the best interest of the employer, employees can have no expectation of privacy in many routine workplace activities.