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Privacy in the Workplace: FAQs for Employees

Q: Is my employer entitled to monitor my phone calls?

A: Employers are generally allowed to monitor calls made from company phones. State laws determine whether the employer must inform all parties to the call that they may be monitored or recorded (for example, by making the familiar announcement that “your call may be monitored for quality assurance”). There are two exceptions to this rule, however:

  • If the employer is monitoring and realizes that a particular call is personal, the employer is required to stop listening.
  • If the employer has set aside specific phones for personal use (for example, in the company lunch room or break area), then employees may reasonably expect that calls from that phone will not be monitored. This practice is becoming less common as most employees have personal cell phones they can use for private calls.

Q: Is my employer entitled to monitor my email messages and computer use?

A: Your employer is legally entitled to monitor your email and your company computer, absent an explicit promise not to do so. In the early days of the Internet, legal scholars were uncertain as to how courts would resolve the question of whether employees can expect any privacy in the email messages they send and websites they visit on their work computers. However, virtually every court to consider this issue has found in favor of the employer’s right to monitor what employees do on company equipment.

Many employers ask employees to sign an acknowledgment form indicating that they know the company reserves the right to monitor email messages and computer use, and that their email and computer work is not private. Even if your employer has not asked you to sign this type of document, however, you should assume that it has the legal right to read your email and track your movements through cyberspace.

Q: Is it legal to videotape employees without telling them?

A: Whether an employer is legally entitled to use cameras and surveillance equipment in the workplace depends on whether you state has a law limiting such filming and where the employer is filming. Some states have legislation that restricts an employer’s right to film employees. In Connecticut, for instance, employers may not install surveillance equipment in areas that are intended for employee rest, such as a break room.

Even if your state doesn’t limit an employer’s right to tape or monitor employees, employers should not place surveillance cameras in areas where employees expect privacy, such as a changing room, bathroom, or locker room. In these areas, employees may be disrobing or engaged in personal activities, for which it is reasonable to expect privacy. An employer who tapes or films employees engaged in spaces like these is courting a lawsuit for invasion of privacy. For more information, see Cameras and Video Surveillance in the Workplace.

Q: Is my employer entitled to search my desk or locker?

A: It depends on all of the circumstances. Generally, courts determine workplace search questions by balancing the employer’s need and reasons to search against the employee’s reasonable expectations of privacy. Because your desk and locker almost certainly belong to your employer, you likely don’t have an expectation of privacy in the things you keep in them unless your employer has led you to believe it won’t search.

If, for example, your employer has a policy stating that it won’t search employee lockers and allowing employees to bring their own locks, you might have a good argument that your employer should not search. On the other hand, if your employer gives you the combination to your locker, requires employees to provide their lock combinations or a spare key to the HR department, or has a policy stating that lockers are subject to search, then you have no right to privacy in the contents of your locker.

Q: Can my employer search my automobile?

A: It depends on the circumstances. If you drive a company car, then your employer probably has the right to search the vehicle. If you drive your own car, your rights depend on your state’s law and your agreement with your employer. For example, if you park in a company-owned lot, and you signed a contract agreeing that the employer has the right to search vehicles on its property at any time, then your employer likely has the right to search your car. On the other hand, if you drive your own car, park on the street, and have not signed anything giving your employer the right to search, you have a strong argument that your employer has no right to search your personal property.

Q: Can my employer search us when we leave work at the end of the day?

A: Some employers, particularly in retail environments, require employees to submit to a bag search on the way out the door at the end of their shifts. Whether this is legal depends on state law, the employer’s policy, and the extent of the search.

As noted above, courts looking at privacy questions generally balance the employer’s need to search against the employee’s reasonable expectations of privacy. In most states, there are few laws that explicitly address the privacy of employees in the private sector. In a few states, however, there are legal privacy protections for non-government employees. (In California, for example, the Constitution includes a right of privacy that protects residents against actions by anyone, not just by government officials.)

If you work in one of these states, you start with a little more weight on your side of the scale. However, much depends on your employer’s policies. For example, if your employer has a policy stating that employees are subject to search when they leave for the day, it would be harder for you to argue that you nonetheless expected privacy. Such a policy allows you to leave private items at home or in your car, safe from your employer’s search.

Similarly, the legality of the search depends on how intrusive it is. If your employer asks employees to open their bags before leaving, that is much less invasive than patting employees down physically – or asking them to strip. These physical searches of an employee’s body are much more likely to violate employee privacy, even if the employer has notified employees that it intends to conduct such searches.

Because so much depends on your state’s laws, and on how courts in your state have interpreted the right to privacy, you should talk to an experienced employment lawyer if you think your employer has crossed the line.

Q: Can my employer ask for my Facebook password?

A: Many states have passed laws directed at this very practice. According to the National Conference of State Legislatures (NCSL), 25 states have legislation limiting an employer’s right to delve into employee social media accounts by doing things like requesting applicant or employee user names or passwords or requiring an employee to access a social media account in the presence of the employer. If you work in one of these states, then your employer may not request your password. To find out the law in your state, check out the State Social Media Privacy Laws chartat the website of the NCSL.

Q: Can I be fired for something I post on Facebook about my job?

A: The federal National Labor Relations Act (NLRA) protects employees from employer retaliation for engaging in “protected concerted activity” – basically, discussions or actions taken together to try to improve working conditions, pay, benefits, or other workplace issues. Lately, the National Labor Relations Board (NLRB), which enforces this law, has interpreted it to apply to social media posts as well as in-person conversations.

Here’s how it works: You may not be fired if your social media posts are an effort to start a conversation with coworkers about the terms and conditions of your job. Personal criticisms and venting are less likely to be protected; conversations intended to rally coworkers to try to improve working conditions are more likely to be protected.

For example, if you tag a couple of coworkers in a comment about long work hours, suggesting that all of you complain to a manager about the situation, you are almost certainly protected. Similarly, if you complain that you believe customer service is suffering because of your company’s new productivity quotas, and a couple of other employees comment on your post, you are likely protected. On the other hand, if you call your manager a bunch of names and threaten to sabotage the company, that is almost certainly not protected.

As you can see, there’s a lot of grey area between posts that are protected and posts that are not. If you have been disciplined or fired for commenting on social media about your job, you should talk to an experienced employment lawyer.

From Lawyers  By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

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