HR Tip of the Week

Workplace Privacy Concerns: Can I Monitor That?

Workplace Privacy

To promote a safe, secure, and productive work environment, some employers monitor employee communications and activities. When doing so, employers must comply with federal, state, and local laws, and strike a balance between protecting their business and respecting employees’ privacy.

Here are 9 scenarios involving workplace privacy along with rules and best practices to consider:

Scenario 1: For quality control purposes, a call center wants to monitor phone calls to and from customers.

Federal privacy laws, and many comparable state laws, impact an employer’s monitoring policies. Generally, employers must obtain consent before monitoring and recording phone calls. In some states, all parties to the call must consent, and in others, at least one party must consent. Before instituting a monitoring program, check your state law and keep in mind the consent requirements of the other states where parties to the call may be located during the conversation. Consult legal counsel to ensure you are complying with all relevant laws.

Scenario 2: A software startup wants to monitor Internet usage to maintain productivity and ensure compliance with company policies.

For valid business purposes, employers may monitor employees' use of company-owned electronic communication systems. To manage privacy expectations, communicate a written policy that explains that the purpose of monitoring is to gather information for legitimate business purposes. Additionally, inform employees they should have no expectation of privacy when using company-issued mobile devices and company-owned computers, email, or Internet.

Scenario 3: A retailer wants to install video surveillance for security reasons.

Employers generally have the right to conduct video surveillance in common areas of the workplace for legitimate business purposes, provided they notify employees and visitors of the surveillance. Typically, employers post a sign in a conspicuous location. Additionally, cameras should be visible to anyone who enters the area. Check your state law for additional requirements.

Scenario 4: A manufacturing firm has experienced several incidents of vandalism in its bathrooms. The company has spent thousands of dollars repairing the damage and wants to know if they can conduct video surveillance to catch the vandals.

Employers should not install video surveillance in places where there is a reasonable expectation of privacy, such as restrooms, locker rooms, or dressing rooms. Check your state’s workplace privacy laws to ensure compliance.

Scenario 5: An employer believes employees are meeting during their lunch breaks to discuss the work environment. The company is contemplating setting up surveillance in break areas to deter these discussions.

Monitoring employee activities may not interfere, restrain or intimidate employees who are exercising their rights protected by the National Labor Relations Act (NLRA), such as working together to improve wages or other terms and conditions of employment. Setting up surveillance in break areas may infringe on employees’ rights under the NLRA.

Scenario 6: A supervisor wants to ask employees for their social media passwords to see what they are posting on their personal social media accounts.

Several states prohibit employers from asking employees or applicants for their log-in credentials to personal social media accounts. Even in states that don’t expressly prohibit this activity, it is a best practice to avoid requesting access to social media accounts.

Note: Some of these states include exceptions for investigations into allegations of employee misconduct. Check your state law to ensure compliance.

Scenario 7: A retailer has a drug-free workplace policy. The retailer is considering random testing to ensure compliance with the policy.

To determine whether random drug testing is permissible, states typically look at the balance between the employee’s right to privacy and the employer’s reason for testing. In some states, random drug testing is limited to bona-fide safety-sensitive positions. Check applicable laws for restrictions and consult legal counsel before implementing any drug testing program.

Scenario 8: A business owner prohibits smoking on her company’s premises and during work time. She is now considering firing employees if they are caught smoking during off hours.

Employers have the right to ban smoking on their premises and during work time, but several states prohibit employers from taking adverse action against individuals for lawful off-duty conduct, such as using tobacco after work. Instead of firing employees for smoking during off hours, encourage smokers to quit by offering smoking cessation resources and incentive programs.

Scenario 9: An employer is struggling with absenteeism in the workplace. The employer wants to require employees to submit a doctor’s note every time they call in sick.

It’s generally not considered a best practice to ask for a doctor’s note every time an employee calls in sick. In fact, several states and local jurisdictions have enacted paid sick leave laws that limit medical documentation requirements to absences of more than three consecutive days. Check your state and local law to ensure compliance. If you receive medical information from your employee, make sure to keep that information confidential and separate from the employee’s personnel file.

Conclusion:

When developing policies and practices for workplace monitoring, aim to strike a balance between protecting business interests and upholding employee privacy rights. Comply with federal, state, and local laws, and consult legal counsel if you have specific questions regarding the impact of your policies on your employees’ privacy interests.

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