Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
Employee privacy has become a greater concern as more and more employees have turned to the Internet and other electronic media to communicate both on and off the job. Although many of these accounts may seem private, in reality employees have very little privacy. Employers can generally search through anything that happens on company computers. Below you can find information on employee privacy, both during the job application process and in the course of employment. Topics addressed include background checks, electronic surveillance, searches, eavesdropping, and more. Keep checking back here to stay up to date in this quickly changing area of law.
Internet and Email Privacy at Work
When you're using computers, electronic devices, and networks owned by your employer, you have no reasonable expectation of privacy. This means that even private messages sent outside of the context of employment may be screened by your employer if they were sent using the company's network and/or computer. Technically, employers must have a valid business reason for monitoring an employee's email or Internet usage. But practically speaking, any non-work usage of work equipment may be considered improper usage (thus providing the business reason for monitoring).
Employees often sign disclosures that the employer reserves the right to monitor Internet and email usage at work (or on employer-owned equipment), even if the details are in fine print. Since employers typically don't have the time or wherewithal to individually monitor each employee, they typically block access to Web sites deemed improper or use tracking software that alerts management to such occurrences. While email may not be checked regularly either, it is often archived in case it needs to be searched later.
Telephone Privacy at Work
For the most part, employers have the right to monitor telephone calls placed to and from their locations, with some limits. Specifically, the Electronics Communications Privacy Act (ECPA) prohibits employers from monitoring employees' personal phone calls, even if the calls were made or received on an employer's property. The Act also requires the employer to disclose the fact that calls are being monitored, and also creates a civil liability for employers that read, disclose, delete, or prevent access to an employee's voice mail.
Video Surveillance and Employee Privacy
The use of security video cameras has only increased as the cost of the devices has gone down, particularly among businesses. Generally, employers are required to notify employees (as well as customers and others in range of the cameras) that the premises are under video surveillance. Also, video recordings must not include audio, since it is illegal to record oral communications under federal wiretap law.
Since surveillance cameras must only be used where there is a legitimate business reason, such as deterring theft or violence, they generally may not be used in break rooms or rest rooms. Similarly, businesses may not use two-way mirrors in rest rooms, locker rooms, and other locations where there is a reasonable expectation of privacy. The National Labor Relations Act (NLRB), meanwhile, prohibits employers' use of video surveillance to monitor the union activities of employees; this includes usage in a way meant to intimidate union members.
Employers are generally free to require job applicants to take drug tests as a condition of employment, since they always have the choice to refuse such testing (which eliminates them from consideration for the job, of course). But many states restrict an employer's ability to enforce drug screening of existing employees to just a few exceptions, including:
- Employees working in jobs that carry substantial safety or health risks for themselves or others
- Injured employees whose job-related accident is suspected to have involved the use of drugs
- Employees suspected of using drugs on the job, such as slurred speech or bloodshot eyes
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