“Why does it feel like somebody’s watching me?”
Remember the old song with Michael Jackson singing this lament in the chorus? Employees in our current technological age may share this sentiment. More and more employers are conducting various modes of surveillance in the workplace, including video cameras and cybersecurity that tracks email and website traffic.
According to the American Management Association, nearly 80% of major employers in the United States monitor employees’ internet, phone, and email use. As this type of surveillance becomes more widespread in offices, factories, and even in at-home remote work sites, the question arises: How far can employers go?
Is Surveillance Permitted?
Workplace surveillance is permitted generally in the United States, especially on company devices and networks. Federal and state law generally permit this type of monitoring. The Electronic Communications Privacy Act (ECPA) of 1986 permits monitoring of work devices. Because the devices are company property, employees shouldn’t expect privacy. On employer-issued devices, employers can track files, documents, email, and online activity, even when the employee is working remotely and even outside normal business hours.
Importantly, to conduct such monitoring, an employer need only show the monitoring is necessary for a legitimate business purpose. Competent legal counsel should always be able to articulate a legitimate business purpose. Does the employer need to show that the type of monitoring is the least intrusive method? In City of Ontario v. Quon (2010), the Supreme Court said no, as long as the employer has a legitimate business purpose.
In Quon, the Supreme Court overturned the U.S. 9th Circuit Court of Appeals in a case involving employee privacy and employer monitoring of mobile text messaging. The city issued pagers to its police officers for work-related messaging. The city’s service provider charged a fee for exceeding the monthly character limits. The police chief then conducted a review of text messages to determine if the excess was for work-related messages or personal messages. The review revealed that Sergeant Jeff Quon sent messages that weren’t work-related and some were sexually explicit. As a result, he was disciplined.
Quon and other employees sued and claimed the city violated the Fourth Amendment right to privacy by obtaining and reviewing the text messages. The case was tried, and the jury concluded that the text message search was legitimate. The district court then made a legal ruling that the city did not violate the Fourth Amendment. On appeal, the 9th Circuit reversed and concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion focused on a host of less intrusive methods that the city could have used. The Supreme Court disagreed and essentially held that because the city had a legitimate reason for the search and it wasn’t excessively intrusive, the search was “reasonable and normal in the private-employer context.”
In analyzing Quon’s expectation of privacy in the text messages, the Supreme Court examined the city’s written policy for “Computer Usage, Internet and E-mail.” While the policy on its face did not state it applied to text messaging, the city advised its officers that text messages sent on pagers were considered e-mail messages.
he Supreme Court took no solid position on whether Quon had a reasonable expectation of privacy in the text messages. Instead, it concluded that the search was reasonable, and the 9th Circuit erred in finding otherwise. From a practical perspective, employers should review their written policies regarding the use of electronic devices to make sure that all devices and activities on those devices are included.
Limitations to Surveillance
There are some limitations to employee surveillance. Employees still expect privacy in certain areas. For example, employers cannot place cameras in breakrooms, restrooms, locker rooms, and changing areas.
May employers use hidden cameras as opposed to visible cameras? Courts have not required employers to reveal a camera or hidden surveillance if the employer has a legitimate reason, such as investigating theft, misconduct, or workplace safety.
However, workplace video surveillance laws differ by state, and some require notification to employees before installing cameras, while other states allow hidden cameras and surveillance under certain specific conditions. Moreover, some states will allow video surveillance, but not audio, so you must be clear on the law in each jurisdiction.
Side Effects to Surveillance
Understandably, employees may begin to become disgruntled about the level or scope of monitoring. Employers walk a fine line to maintain employee trust. Transparency is important, and one way to help with workplace trust is to include clear policies in employee handbooks on how, when, and where monitoring may occur.
Another negative side effect to surveilling employees is that this type of monitoring could lead to psychological distress and lower job satisfaction. Data from research indicate that surveilling employees often has a negative effect on work productivity and employee misconduct. One study found that employees who knew they were being surveilled took more unapproved breaks, intentionally worked more slowly, and stole more office supplies than their unmonitored colleagues. Productivity could be reduced because workers devote more energy to finding creative ways to subvert the very controls that employers have installed.
Bottom Line
It’s a wise practice to carefully consider your goal in conducting surveillance in the workplace. Then, you should make sure your written policies explain the surveillance so that employees have proper notice not to expect privacy at work and that your practice is consistent with state and federal law.
Ronda L. Harvey is an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia, and can be reached at 304-353-8160 or ronda.harvey@steptoe-johnson.com.