The workplace has evolved far beyond the office premises. People now work from home, use their personal mobile phones for business-related communications, and get in touch with one another via messaging services, which record all the messages. On the employers’ side, they have more tools to monitor employee productivity, assess potential candidates, and secure company data. The outcome is a legal situation in which the interests of the business and the privacy rights of its staff come into conflict more frequently and with greater importance than they did ten years ago. The main issue today is not whether an employer can gather information about its employees, but whether it can justify the information it collects, how it uses it, and how it protects it.
Firms that take employee privacy lightly are becoming increasingly vulnerable. On the other hand, those organizations that handle this risk effectively realize that privacy legislation in the employment area comprises a mix of federal statutes, state laws, and common-law claims, and that adherence to the law requires clear policies, consistent practices, and early legal advice.
Workplace Monitoring and the Limits of Employer Oversight
Although employers usually have a wide range of freedom when it comes to monitoring activity on company systems, that freedom is not without limits and decreases rapidly if the monitoring is not made known or if it goes beyond what is necessary.
Notice and Consent Are the Foundation
The employee’s expectation of privacy is mostly determined by what the employer has said to them. Employers who make it clear in a written policy that company email, networks, devices, and accounts may be monitored are in a much stronger position than those who monitor without informing their employees. In several states, there is a requirement to give advance notice before electronic monitoring takes place, and federal law limits the interception of certain kinds of communication without consent. It is important for employers to obtain confirmation from employees at the time of hiring regarding monitoring policies and to review them whenever practices change.
Personal Devices and Remote Work Blur the Line
It is difficult to distinguish between professional and private life when employees use their own phones and laptops for work or work from home with company equipment. If an employer installs monitoring software on a personal device or tracks an employee’s location outside working hours, the employer could be sued for invading a person’s seclusion and violating state privacy laws. Therefore, companies should establish clear bring-your-own-device policies that specify what the employer may access, what it may not access, and what happens to company data when the employment relationship ends.
Monitoring Cannot Interfere with Protected Activity
Surveillance that discourages employees from discussing their wages, working conditions, or their desire to join a union may still violate federal labor law. Employers should be careful when monitoring employees’ communications regarding the terms of their employment and ensure that their social media and confidentiality policies are sufficiently specific to exclude protected activities.
Hiring, Background Checks, and Employee Records
The duties related to privacy begin before the employee is hired and continue well beyond the time they leave.
If an employer uses a third-party agency to obtain a background or credit report, federal law requires certain provisions regarding disclosure, consent, and notice, specifying the procedures that must be followed before an adverse decision is made based on the report. Many states and municipalities have imposed additional restrictions, such as limitations on the use of criminal history and credit information. Employers who regard background screening as merely an ordinary administrative task often find, during a lawsuit, that they have omitted a necessary procedural step.
Medical Information Must Be Kept Separate and Confidential
Details concerning an employee’s health, disability, or genetic characteristics are governed by strict confidentiality rules. Employers are required to store medical information in files separate from regular personnel records, restrict access to those who truly need to know, and avoid asking questions about an employee’s health or their family medical history if such questioning is prohibited by federal law. Even if no discriminatory intention exists, a casual comment by a supervisor about an employee’s medical condition can form the basis of a claim.
Biometric Data Has Become a Litigation Hotspot
An increasing number of states have introduced laws that set out how biometric identifiers may be collected, stored, and destroyed. In some cases, these laws mandate that written notice and consent must be given before collection is carried out and provide employees with the right to sue directly in the event of a breach, usually with substantial statutory damages. Employers who use any kind of biometric technology should check the laws of each state where they operate before putting the technology into use, rather than waiting until a claim has been made.
Off-Duty Conduct, Social Media, and Employee Speech
Employers often make mistakes when judging their rights in the area between an employee’s professional life and their private life.
Several states limit an employer’s ability to discipline or dismiss an employee for lawful behavior outside of work, such as using legal products and participating in political activity. An employer who punishes an employee for something found on the employee’s personal social media account could find that the punishment is in breach of the law, even if the original post was to the employee’s best interest.
Employee Data Is a Target
The payroll records, Social Security numbers, details regarding benefits, and health data kept by an employer are appealing to hackers, and if there is a breach, the employer must provide notifications, face regulatory scrutiny, and deal with claims from affected employees. Employers must limit the personal data they collect to the minimum necessary, restrict access within the organization, and establish retention and destruction policies that ensure sensitive information is not left indefinitely in old files and systems.
Vendors Extend the Risk
It is common for employers to share employee data with their payroll processors, benefits administrators, and software providers. If a vendor fails, then that failure becomes the employer’s issue. The contracts entered with these vendors should specify the data security standards, the times within which breaches must be notified, and who is to bear the resulting costs.
AI in the Workplace
Resume screening tools, video interview evaluators, and systems used to assess employee productivity all raise concerns about both privacy and discrimination. In some places, it is now necessary to provide notice, conduct audits, or obtain candidates’ consent before using automated decision-making tools in the hiring process. Employers should know exactly what data these tools collect and how they arrive at their conclusions before placing any trust in them.
Practical Implications for Employers
What links the various areas of monitoring, hiring, record-keeping, and data security is that the risk to employee privacy is mainly due to unclear policies and inconsistent practices, not to malicious intent. For employers, the important point is not merely to collect less information, but also to explain why information in each category is collected, who has access to it, how long it is stored, and how it is protected. Companies should draw up clear written policies relating to monitoring, the use of personal devices, and data retention; train managers as to what they can and cannot ask for or access; and get legal advice from their employment lawyers before introducing any new monitoring or screening technology, not after a complaint has been made.
The companies that do best are those that have established clear policies, adhered to strict practices, and developed a culture where questions about privacy are raised at an early stage and dealt with carefully. The practical lesson is obvious: review your organization’s privacy practices before a dispute forces you to. Get in touch with Warner PLLC today.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Every scenario is different, and the laws governing employee privacy vary by state and by the facts of each situation. For customized support, contact Warner PLLC.
