Are Employers Allowed to Monitor Employees' Emails and Phone Calls at Work in the USA?

Employee monitoring is completely legal in the United States. Monitoring laws in the US give employers a significant amount of rights to monitor the activities of their employees on workplace devices. However, it must be backed by valid business reasons. Some state laws state that consent is a requirement.

Employers can read your email, view your personal computer files, and eavesdrop on your phone calls. They can film it with hidden video cameras not only in public areas, but also in the changing rooms and even in the bathrooms. The Electronic Communications Privacy Act allows employers to monitor oral and electronic communications if they have a legitimate business purpose or obtain employee consent. The National Labor Relations Board has held that employers with a unionized workforce must obtain the consent of the relevant union before conducting any video surveillance of unionized workers. There are many legitimate reasons why employers can monitor their employees in the US.

Employers generally have the right to monitor employees on company computers, phones, and other devices when (i) the supervision is performed in the normal course of business activity and (ii) employees are notified of the supervision. In this situation, courts often determine that employees have no expectations of privacy with respect to their communications and other activities on these devices. The Electronic Communications Privacy Act (ECPA) prohibits the interception of electronic communications in most cases, but there is an exception when it comes to employer supervision. The ECPA allows you to monitor if one or all of the parties have given their consent, or if the interception is carried out in the normal course of business. However, keep in mind that if you choose to monitor employee phone calls in jurisdictions with bipartisan consent, such as California, you will still need the implicit or explicit consent of the other party to make the call. For example, on a customer service call with an employee, customers must be notified that the call will be recorded.

Does the company maintain a policy that prohibits personal or other objectionable use? Does the company monitor the employee's use of the computer or email? Do third parties have the right to access the computer or to emails? Did the company notify the employee or was it aware of the usage and monitoring policies?While employers often monitor employee communications through employer-owned computers, networks and cloud services, the line becomes blurred when personal devices are authorized for use in employment, such as in BYOD (bring your own device) workplaces. The Stored Communications Act (SCA) prohibits intentional and unauthorized access to private communications in electronic storage. This law generally does not apply to communications sent through work devices (since those communications are not expected to remain “private”). However, SCA is often involved when employers have tried to access information in an employee's private social media account or personal email account. In these cases, the employer can limit SCA claims by having a BYOD policy that clearly describes the processes of canceling or disposing of company assets on a personal device. Regardless of whether the employer uses corporate devices or a BYOD policy, it is the employer's responsibility to properly inform and train their employees about workplace monitoring expectations.

This notice should be included in the policies or manuals presented at the time of hiring and should be updated or revised periodically from time to time. In general, people have lower expectations of privacy in commercial facilities than in a private home. Employers can generally place video cameras at entry and exit points, and may even have an obligation to do so to protect the confidentiality of their data. Employers can monitor employees' phone calls for quality control. Technically, employers are supposed to stop listening once they realize that the phone call is personal. However, if there is a policy that states that personal calls should not be made during working hours, the employer can listen long enough to determine the purpose of the call.

The employee can then face disciplinary action if it's a personal call. Employers already have employees' most personal data and can violate privacy laws, such as HIPAA, if they disclose private information to someone. If you are concerned that your employer is registering you, consult with an employment lawyer about how your state is addressing the situation. While the law is vague in other states, tracking any employee's personal vehicle without their consent without their consent will undoubtedly violate a state's privacy laws. If you are concerned about your employer monitoring your personal email, you should speak to an employment lawyer as soon as possible to clarify the situation. Federal and most state privacy laws allow employers to decide how far they can go with their employee monitoring programs.

While federal wiretapping law prohibits eavesdropping.

Cornelius Maxon
Cornelius Maxon

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