Somebody’s Watching Me: Employee Monitoring

Employers can generally monitor employee activity on a workplace computer/workstation. While many will notify you of their practices, employers typically control the network, own the equipment and have the ability to monitor you without your knowledge. Common monitoring practices include

• using software to see what’s on a screen or stored on a computer
• keeping track of the amount of time you spend away from or idle at your computer 
• counting keystrokes

As an employee, there are some circumstances where you might have rights regarding computer and other forms of electronic monitoring including

• states enacting laws to protect employee privacy
• union contracts limiting an employer’s ability to monitor
• the Fourth Amendment of the United States Constitution, if you’re a public sector employee (safeguards against unreasonable search and seizure)

When employers use email or instant messaging services, they can generally review the contents. Messages sent within the company as well as those that are sent/received by another person or company can be subject to monitoring. Never assume that your company email and instant messages are private (even if they're encrypted).

In most cases, your employer can monitor your phone calls at work on work phones (quality control for clients or customers).

When employers realize a call is personal, they must immediately stop monitoring the call. However, when employees are told not to make personal calls from specified business phones, they risk the calls on those phones being monitored.

Generally, your employer can monitor your use of any employer-provided mobile phone or device including

• messaging
• email
• internet usage
• location
• contacts
• call logs
• photos
• videos

Some employers will allow you to use your personal devices for work, but it’s important to read your employer’s policies and ask questions before you make your decision. Don't assume your employer has created a policy that balances its risk with your privacy concerns. Often referred to as bring your own device programs, terms can appear in any number of places including

• separate agreements
• employment contracts
• orientation materials
• employee manuals
• when you install mobile device management software on your device

Many companies attempt to have social media policies that limit what you can post about them. The National Labor Relations Board has issued reports regarding policies that go too far and prohibit activity protected by federal law.

Some states have laws that prohibit employers from disciplining employees based on off-duty activity on social media (unless the activity can be shown to damage the company in some way). Several states have also enacted laws prohibiting employers from requiring employees or job applicants to provide a user name or password for a social media account.

Your employer can generally use Global Positioning Systems (GPS) to track you in an employer-owned vehicle.

Security cameras are commonly used for deterring theft, maintaining security and monitoring employees. While federal law doesn’t prevent video monitoring even when you don’t know or consent to being monitored, courts have upheld employee privacy in some cases (hidden cameras in locker rooms or bathrooms). Additionally, some state laws restrict where, how and why an employer can record you. Labor unions can also negotiate limitations on the recording of their workers.

Cameras that record audio in addition to video can subject employers to state wiretap and eavesdropping laws (a number of states require all parties involved to consent to audio recording). 

Your employer (or anyone authorized by your employer) can generally open mail addressed to you at your workplace. There are very limited and fact-specific situations in which opening and reading an employee’s mail might be considered an invasion of privacy.