Employee Workplace Privacy Rights

Employee workplace privacy rights are virtually nonexistent in private-sector employment. That's because up to 92% of private-sector employers conduct some type of electronic surveillance on their employees, according to estimates. Most may do so even without the consent or knowledge of their employees.

Using sophisticated software, hidden cameras, phone-tapping devices, "smart card" security badges and global-positioning technology, employers may electronically snoop employee:

• Computer keystrokes and files
• Internet, Web and email usage
• Locations, movements and activities
• Phone conversations and numbers dialed
• Job performance

Employers may spy on their employees in those ways and then some, because they have the right to protect their buildings, office equipment and such. Subsequently, security legally trumps employee privacy rights in the workplace.

Employers also have the right to thwart potentially-damaging employee behavior, such as sexual harassment, and ensure employee productivity. But it's also because there is no Federal "employee workplace privacy rights law" that universally prohibits electronic surveillance.

Most states don't have so-called employee workplace privacy rights laws either. Even in the few that do, such as those listed to your right, the laws have no "teeth". In a nutshell, they require only that employers give employees prior notice of electronic surveillance and/or avoid surveilling employees while they're changing clothes. In fact, the state laws essentially "legalize" electronic surveillance, because they don't prohibit it across the board.

A new employee privacy law was to become effective in January 2008, under an amendment to the Illinois Right to Privacy in the Workplace Act. However, because it effectively prevented Illinois employers from enrolling in the E-Verify System operated by the Department of Homeland Security (DHS), the DHS sued the state. Meanwhile, Illinois has agreed not to enforce the new law until the DHS lawsuit is settled.

According to the often-cited "2007 Electronic Monitoring & Surveillance Survey" released in February 2008 by the American Management Association (AMA) and The ePolicy Institute, most of the employers surveyed indicated that they subjected their employees to electronic surveillance in some way, shape or form. For example:

• 73% monitored email messages
• 66% monitored Web surfing
• 48% monitored with video surveillance
• 45% monitored keystrokes and keyboard time
• 43% monitored computer files

Beware of bad-mouthing your employer on blogging and social-networking sites! Among the employers surveyed, 12% monitored the blogosphere and 10% monitored social networks. In a more recent survey, 60% of executives believe they have the right to monitor what employees post in social networks. It's a growing trend and legal, as long as employers don't violate employee privacy rights under the Stored Communications Act.

Most surveilling employers surveyed at least notify their employees that "Big Brother" is watching. But, to put that another way, not all of them do. It's likely a sure bet that many who weren't surveyed don't either, because most don't have to by law. (Some employers who notify their employees anyway, do so because it looks better in court should employees file workplace privacy lawsuits.) So, the safest approach for employees these days, is to always assume that Big Brother is watching.

It's also a good idea for employees to learn their employers' policies that deny them workplace privacy rights. If employees violate such policies, then their employers might have good cause to fire them. In fact, a significant number of employers surveyed by the AMA and The ePolicy Institute had fired employees for policy violations regarding misuse of the Internet (30%), email (28%) or phones (6%).

But, employees don't have to just take it. For one thing, employees may challenge such firings in the courts. The courts will likely consider all factors, to determine if the employers truly had good cause to fire the employees for company policy violations.

For another, employees may support the American Civil Liberties Union (ACLU) or a similar organization, that is lobbying for Federal and state employee workplace privacy rights laws.

Meanwhile, employees may challenge their lack of workplace privacy rights through lawsuits. In fact, some already have and they've won. Despite the absence of employee privacy rights laws and the dismal lacking of those that do exist, employers don't always have the right to violate fundamental American privacy values.

For example, employers don't have the right to turn workplace surveillance into workplace voyeurism. In a couple of similar workplace privacy lawsuits won by employees, employers claimed "drugs" as the reason they secretly videotaped employees in company locker rooms. But, instead of revealing illegal drug use or sales, the hidden cameras embarrassingly exposed employees changing their clothing. In so many words, the courts found that type of employee surveillance to be a blatantly disrespectful privacy invasion.

Employers also don't have the right to violate the Stored Communications Act or an individual's right to privacy under the Fourth Amendment to the U.S. Constitution, when enforcing employee monitoring and surveillance policies.

See a lawyer about challenging an employer invasion of your workplace privacy through a lawsuit.