Surveillance at Work
When it comes to surveillance at work, you may be surprised at what your employer can legally do. Employers can legally monitor almost anything an employee does at work as long as the reason for monitoring is important enough to the business. Employers may install video cameras, read postal mail and e-mail, monitor phone and computer usage, use GPS tracking, and more. The reason for a particular type of workplace surveillance must be more important than an employee’s expectation of privacy to be legally permissible. For example, an employer most likely would not have a good enough reason to monitor a locker room but would be allowed to monitor conversations between customers and customer service employees. To learn more about your employee rights with respect to surveillance at work, read below:
In order for an employer to legally videotape you in the workplace, there must be a legitimate business reason for the recording. Such purposes can include security reasons, time and motion studies, or other investigative processes. Camera recordings in areas where employees have a reasonable expectation of privacy, like locker rooms or bathrooms, is almost always prohibited.
If the recording is done by visible cameras, federal law seems to allow videotaping of individuals in the workplace, even without their consent or knowledge, as long as it is not done to commit a crime.
Where the recording is done by hidden cameras, courts place a higher burden of proof for the employer to demonstrate that the surveillance is for a legitimate business reason. This means that employers cannot simply say the recording is for security reasons, and must provide a reason beyond that in order to justify their use of hidden cameras. In places where employees are unaware of video surveillance, their reasonable expectation of privacy may be heightened. As a result, employers are generally well-advised to provide notice of hidden cameras in the workplace.
Certain states have placed stricter restrictions on videotaping in the workplace. Connecticut (Conn. Gen. Stat. §31-48D) and Delaware (Del. Code § 19-7-705) require employers engaging in electronic monitoring by any means other than direct observation to give prior written notice to all employees who may be affected. The California Supreme Court (Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009) has also advised employers to disclose the existence of workplace video surveillance in writing to employees, and require employees to sign a receipt of notice.
Michigan lies in a gray area, not fitting neatly in the box for either single-party or two-party consent states. Although it has historically been a single-party consent state, litigation in recent years has courts disputing the meaning of Michigan’s statute, MCL 750.539c. The law seems to make Michigan a two-party consent state, but a major exception undermines this assumption. In gist, Michigan allows one-party consent only if the consenting party is a part of the recorded conversation. So, it would not be legal for an employer to record a phone call between two employees if they only get permission to record from one of them.
If none of the recorded parties are aware that a phone call is being recorded, this may constitute wiretapping – which is subject to different laws.
In California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, you need the consent of all parties participating in the conversation in order to record it. These twelve states are known as “two party consent states” so employees cannot secretly record conversations with other employees without their consent.
In states without a two-party consent requirement, as long as one party gives consent, which can include the person recording the conversation as long as they actively participate, then the conversation can be legally recorded. If no party knows about the recording, then the situation may constitute wiretapping, which is subject to a different set of laws.
Under Federal law, it is legal to record a conversation as long as one-party gives consent to the recording. Some states have placed more restrictions on audiotaping, and may require that everyone involved in the conversation be aware of, and consent to, the taping. Some states, like Connecticut, have implemented stricter laws for employers, fining them for overuse of audiotape recorders. Federal labor laws also limit an employer’s ability to audiotape employees by prohibiting the secret monitoring of union meetings, including audiotaping.
Under federal law , employers are only allowed to monitor business telephone conversations; if they realize that the call is personal, they must hang up. However, if you have been explicitly told not to conduct personal conversations on certain business phones, you run the risk of that conversation being monitored by your employer. Employers may also monitor your personal phone conversations if you have given them your consent. Some state laws provide further safeguards on telephone conversations by requiring that not only the employee, but the person on the other end of the phone line know about and/or consent to the call being monitored.
It is unclear whether federal law – the Electronic Communications Privacy Act (ECPA) – prohibits employers from listening to employees’ voicemail. The ECPA holds employers accountable for obtaining and reading or deleting voice messages that are stored electronically. However, courts debate whether this outright prohibits employers from listening to employees’ voicemail, especially messages that an employee has already listened to but not deleted.
Yes. Voice mail and e-mail systems often retain deleted messages by permanently “backing them up” in your employer’s computer system, and your employer may access these backups.
Again, the best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.
For the most part, this depends on your employer’s policy. At most workplaces there is a designated person who opens and sorts the postal mail; and in most cases such a person may accidentally, or even purposely, read any of your mail without any legal consequences.
Mail that is marked “Personal” or “Confidential,” however, may not be opened by other people besides yourself, unless there is a compelling (very important) business reason to open it.
For the most part, yes. With office computers or laptops loaned for work purposes, employers can legally monitor your screen, your internet activity, your emails, how long your computer is idle, and even your GPS location. Essentially, an employer has full access to monitor devices that they own. However, many remote workers use their personal computers. To monitor your own devices, an employer must have your written consent. They generally will obtain this upon hiring for any remote position. Employers may legally require you in your hiring contract to download software that allows them to track your work during work hours. They cannot delve into your personal data and uses.
See our Computer Privacy page for more information.
Sometimes. Many employers have been using devices such as GPS in company cars in order to track how fast employees are driving, how long a break they are taking (monitoring how long the vehicle has not moved), and where employees are located. GPS has also been used to track the movements and whereabouts of employees on or off the job, by placing tracking chips in in employer-owned laptops or phones that an employee was given for work.
In one case, the attachment of a GPS device to an employee’s personal vehicle as part of an employer’s investigation amounted to a workplace search that fell within the workplace exception to the warrant requirement, and thus did not require a warrant. However, the search was considered unreasonable because the scope exceeded work hours. See Matter of Cunningham v. New York State Dept. of Labor, 21 N.Y.3d 315 (N.Y. 2013).
While some unions have fought to protect workers against this type of monitoring, at this time, little law exists to protect workers against it.
Employers have been known to use security monitoring devices including fingerprinting, retinal scanning, and even implanting computer chips in employees’ arms. In most cases, employers are allowed to monitor you however they wish, especially if you choose to work in a high-security occupation where high-tech security measures are necessary. Requiring an employee to place a computer chip in his/her arm may be going too far; but this technique is a recent development, and has not made its way to the courts yet.
As of 2023, about a dozen states have passed laws to ban employers from requiring their employees to get a microchip or other device implant. This includes Arkansas, California, Illinois, Indiana, Missouri, Montana, Nevada, New Hampshire, North Dakota, Oklahoma, Utah, and Wisconsin.
Yes. Employers may monitor what is transmitted through the headset even though the employee is not speaking to a customer or client. Some headsets may be muted in order to prevent transmission of conversations employees do not want monitored. Otherwise, employees should take the same care they would exercise in speaking to customers or clients while speaking with other employees.
If an employer provides a phone or other device for work purposes, they may legally monitor everything on it. If an employee uses their own personal device for work, however, the employer needs written consent to monitor it. Employers often obtain such consent in hiring contracts with remote workers. Even so, monitoring should be limited and relate only to business purposes. For example, an employer may require an employee to download software that tracks their phone activity during designated work hours.