Work Place Monitoring

MONITORING EMPLOYEES

Can an employer video employees at work, can an employer electronically record an employee’s conversation, can the employer listen in on an employee’s phone conversations, can an employer search the employee’s computer, and can an employer search the employee’s desk?

There are no federal statutes that regulate private employers on broad workplace privacy issues; however, federal laws do regulate specific aspects of privacy that arise during the employment relationship. For example, the Federal Privacy Act restricts the collection of information and regulates access to information for federal employees and covers private employers who have federal contracts requiring specific recordkeeping obligations.

The Federal Wiretapping Act/Electronic Communications Privacy Act prohibits the intentional interception or disclosure of any wire, oral, or electronic communication where there is a reasonable expectation of privacy. There are two exceptions:

  • if one party to the communication has consented, electronic monitoring is allowed, and
  • a business use exemption permits telephone extension equipment used to monitor communications within the ordinary course of business.

The National Conference of State Legislatures has a state by state listing of electronic surveillance laws. http://www.ncsl.org/issues-research/telecom/electronic-surveillance-laws.aspx

The Privacy Rights Clearinghouse has good information on Workplace Privacy and Employee Monitoring. https://www.privacyrights.org/print/fs/fs7-work.htm

The information in the next four paragraphs is from The First Amendment Handbook, Reports Committee for the Freedom of the Press (http://www.rcfp.org/first-amendment-handbook/introduction-recording-state-hidden-camera-statutes).

Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit this so-called one-party-consent recording of telephone conversations in most circumstances. Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.