Privacy and Monitoring

Workplace Privacy and Monitoring

Workplace privacy is an important and growing concern for business. It is often difficult to sort through and understand privacy issues, considering the multitude of federal and state constitutional guarantees, limitations imposed by federal and state statutes and case law. In addition, technology expands both employer and employee concerns about privacy rights.

Provide Advance Notice of Workplace Privacy. Provide advance notice of what employees can and cannot expect to remain private in the workplace. Reducing the expectation of privacy is your best defense against allegations of invasion of privacy. If you provide employees with computers, laptops, cell phones, mobile devices, etc., for company use, you must maintain a written policy about their use. Just as you may want to search, with or without notice, company property such as desks, lockers, voice mail and email, you may want to monitor or audit other company property, or limit the use to business-related matters. A written policy about use of company property, including electronic devices, provides advance notice to employees that any messages created, sent, received or stored on these devices are the property of the company and that the organization can access them at any time.

Obtain Consent to Access Private Information. In addition to providing advance notice, obtain consent from employees to search or access information stored in email or voice mail. Obtain consent in writing in advance. Keep on file a written acknowledgment from each employee that he/she has received, read and understood the company’s policy about access to electronic information. If your employee handbook includes an electronic information access policy, you can include this acknowledgement in the general acknowledgment of receipt for employee handbooks. You can also create a separate document entirely. In addition, it is best to obtain consent from an employee at the time you access electronic communications. Of course, this is not always possible because you can legitimately need to access information when the employee is not available to give consent, perhaps when the employee is on vacation or on a lunch break.

Monitoring Employees. Concern over inventory loss, customer service, drug and alcohol abuse, misuse of company facilities and equipment and illegal activity on company premises created an increasing desire to conduct surveillance in the workplace. New technologies replace the one-way mirror and the surveillance station of days past, but also prompt employee privacy concerns.

Shopping Investigations. You can hire “shopping investigators” to test employees’ integrity and review sales techniques and service. Before discharging or disciplining an employee on the basis of a shopping investigator’s report, you must provide the employee with a copy of the report. During an interview that might result in terminating an employee for dishonesty, you must give the employee a copy of the latest investigation report on which the interview was based. You are excused from these requirements if the shopping investigator is employed exclusively and regularly by you and the entire investigation is conducted solely for you.

Electronic Surveillance. Consult with counsel before using cameras to electronically monitor employee activities. At a minimum, you must notify employees that cameras have been installed and obtain their written consent to be monitored. In addition, never place cameras in an area where employees legitimately expect privacy, such as restrooms or changing areas. California law prohibits public and private employers, except the federal government, from making audio or video recordings of employees in rest rooms, locker rooms or rooms designated by the employer for changing clothes, unless authorized by a court order. You cannot use recordings made in violation of this law for any purpose. Employers who want to monitor employees should consult with legal counsel before doing so.

Have a Legitimate Business Purpose to Search. The U.S. Supreme Court’s “reasonableness test” has been used to balance legitimate business needs with a public sector employee’s expectation of privacy in his own office. Though O’Connor v. Ortegaapplies only to public sector employers, it is a good indication of the test that courts will likely apply to private sector employers. The test focuses on whether:

Reasonable grounds exist for suspecting that the search will reveal evidence of work-related misconduct
The search is necessary for a non-investigative, work-related purpose, such as looking in an employee’s desk to find a work-related document on a day that the employee is out sick
The search’s scope was reasonably related to the search’s objectives and not excessively intrusive in light of the nature of the suspected misconduct

A federal court applied this test to workplace technology in Williams v. Philadelphia Housing Authority. In that case, a supervisor removed a computer disk from a public employee’s desk while he was on leave. The supervisor then read the information on the disk to locate work-related documents and discovered it also contained personal documents. The court held that it was not unreasonable for a supervisor to enter an employee’s office to retrieve important work-related materials while the employee was on leave. Review of the personal documents on the disk while searching for work-related material was not considered unreasonable. Though this case dealt with a public employer, it is an excellent example of how the courts will balance competing rights and will likely become part of the precedent applied to private sector employers.

Secret Videotaping in Open Workplace. In Sanders v. American Broadcasting Companies, the California Supreme Court held that a journalist secretly videotaping an employee in an open workspace constituted an invasion of privacy. The secret videotaping in that case was done as a part of an undercover investigative report on “tele-psychics” by a television reporter in a workplace with low, open cubicles where conversations could easily be overheard by anyone in the room. The court concluded that the fact that a workplace interaction might be witnessed by others on the premises does not eliminate an employee’s reasonable expectation of privacy. In an office or other workplace to which the general public does not have free access, employees enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants’ co-workers.

Seek Advice of Counsel When Privacy Is an Issue. Most employees are well aware of the right to privacy guaranteed them by the California Constitution. When an employee feels that right has been violated, litigation often follows. Consult counsel in any situation where privacy is an issue, such as when an employee is suspected of misconduct warranting an investigation. Also consult counsel when creating a policy relating to employee privacy issues. The law in this area remains unsettled and constantly changes.