Employers have some leeway to intrude on your privacy in the workplace, but there are limits on how far they can go.
As an employee, your right to privacy at work is often outweighed by your employer's right to run its business as it sees fit. That means your privacy rights at work are generally much narrower than they are at home or in public.
This is especially true with respect to technology. Because employers typically own their computer networks and phone systems, courts have found that employers have greater rights to monitor employee activities when using those systems.
However, there are some limits on how far an employer can go when it comes to invading employee privacy. Some state constitutions include a right to privacy, which might tip the balance towards an employee's right to privacy in the workplace. In addition, employees have the right to keep private facts about themselves confidential, as well as the right to some amount of personal space.
FAQs about Employee Privacy
- Can my employer monitor what I do on my work computer, including my internet activity?
- Is it legal for my employer read my email?
- Can my employer read my text messages?
- Is my employer allowed to record or listen in on my phone calls?
- Can my employer film me in the workplace?
- Is my employer allowed to search me?
- Can my employer search my workspace?
- Can my employer force me to take a drug test?
- Is it legal if my employer fires me for what I do or say outside of work?
- What laws address employer monitoring of employees?
- Can you sue your employer for illegally monitoring you at work?
Can my employer monitor what I do on my work computer, including my internet activity?
Yes. Computers and networking systems typically belong to employers, which gives employers the right to monitor what you do on your computer, so long as they have a valid business purpose for doing so. This includes:
- How you use the internet. Employers can track your internet browsing.
- Whether you're working. Employers can monitor whether your computer is idle, and can even monitor the number of keystrokes that you type every hour and the actual words that you type.
- What you keep on your computer. Your employer can view any files or documents you store on your computer, as well as any software you've downloaded.
Is it legal for my employer read my email?
Whether your employer has the right to read your email depends on whether it is work or personal email, as well as on where you are viewing your email.
Because your activities while using your employer's computer system are largely unprotected by privacy laws, employers can monitor your email just as they can monitor your internet browsing. And if you view your personal, web-based email account (like Gmail) on your work computer during business hours, then your employer is likely entitled to monitor your personal email as well. If you have agreed to an employee policy or handbook stating that your email and other communications will be monitored, you are even less likely to have any right of privacy in your personal email.
Can my employer read my text messages?
If you have a company-provided cell phone, your employer probably has the right to view your text messages, as well as other phone content and activities, such as your contacts and even what you do on social media. (Whether they have the ability to do so without your knowledge is another question, as text message records are stored by cell phone companies, rather than on company servers, and not all employers have access to those records.) Your employer does not, however, have the right to search your personal cell phone.
Is my employer allowed to record or listen in on my phone calls?
Yes. Your employer can record or monitor calls on your work phone for quality control purposes. The law requires that employers stop listening in as soon as they realize that a call is personal.
Some states, such as California and Michigan, require that all parties to a monitored phone conversation receive notice that calls will be monitored. If your state has a law like this, your employer is required to inform you if they plan to monitor your phone calls.
Can my employer film me in the workplace?
Employers generally have a right to use video surveillance in the workplace, as long as they have a legitimate business reason for doing so and the monitoring is not too invasive. In many states, employers are not allowed to conduct video surveillance in areas where employees have an expectation of privacy, such as restrooms, locker rooms, or break rooms.
Is my employer allowed to search me?
The Fourth Amendment protection against unreasonable searches and seizures applies only to government actors, and does not extend to private employers. Many states lack laws governing searches in the workplace. As a result, whether an employer search of an employee is legal is often determined by the courts. In making such a determination, courts generally weigh two factors:
- whether your employer has a legitimate justification for intruding on your privacy, and
- whether you have a reasonable expectation of privacy.
For example, if something was stolen from the workplace, then your employer can probably search you as long as the search isn't overly intrusive. Your employer would be even more justified in doing so if a workplace policy allowed such searches. On the other hand, your employer probably does not have the right to search employees regularly without a good reason, or to single out certain employees for searches—especially if there is no policy warning employees that they might be subject to search.
Can my employer search my workspace?
Yes. Your employer generally has the right to search your workspace, including your desk, office, and locker. As with computers and company phones, the employer owns the workspace, and courts have found that employees don't have an expectation of privacy in those areas.
Can my employer force me to take a drug test?
While employers have broad rights to require drug testing for job applicants, their right to require existing employees to submit to drug screening is narrower in most states. In those states, employers generally can require drug testing only if it is limited to employees who have completed a drug rehabilitation program, who are reasonably suspected of drug use, or who work in high-risk jobs (such as airline pilots and prison officers).
Is it legal for my employer to fire me for what I do or say outside of work?
Employees are sometimes surprised to learn that they can be fired or disciplined for things they say or do during their free time. While employers have relatively broad rights in this regard, there are some state and federal laws that protect your rights when it comes to your activities outside of work.
The First Amendment prevents the government from restricting free speech, but it doesn't apply to private actors such as businesses. And every state except Montana has "at will" employment laws, which means that employers can fire you for any reason as long as it's not discriminatory. As a result, private employers have the right to fire you for inappropriate speech or behavior outside of work.
However, some states have "lifestyle discrimination" laws that prevent employers from discriminating against employees based on off-duty behavior. The majority of these laws are quite narrow, offering protection based on sexual orientation or to employees who smoke cigarettes or use medical marijuana during their off-hours.
Only a few states—including California, Colorado, New York, and North Dakota—have laws that offer broad protection against lifestyle discrimination. These states prohibit employers from disciplining, firing or otherwise discriminating against employees for any lawful conduct occurring during nonworking hours away from the employer's premises.
In addition, the National Labor Relations Act (NLRA) is a federal labor law that protects your right to speak up about working conditions and other workplace problems, as long as your speech qualifies as "concerted activity." For example, under the NLRA you have the right to engage in discussions with coworkers on social media about working conditions, or join with coworkers to bring job safety concerns to the media. This type of speech is protected regardless of whether it occurs on or off the job.
What laws address employer monitoring of employees?
At the federal level, the Electronic Communications Privacy Act (ECPA) of 1986 is the main statute governing how and when employers may monitor their employees.
Under the law, employers can monitor employees in the workplace, including both written and verbal communications, for any legitimate business purpose. They can use further monitoring methods with their employees' consent.
Monitoring is generally limited to business-related activities. An employer can monitor calls made on their own phone lines, but they should not listen in on employees' private phone calls. Employers can use video surveillance in areas where no one reasonably expects privacy, but they cannot place cameras in private locations like restrooms.
Computer usage may present additional concerns. Employers can keep track of employees' internet usage, for example, to gauge productivity and guard against time-wasting activity. If an employer saves data about their employees' internet usage, they could become liable for safeguarding information that could be used for identity theft or other illegal activities.
Many states have their own laws that are more protective of employee privacy than federal law. They might require employers to disclose to their employees all forms of monitoring used, to obtain their consent in advance, or to prohibit certain kinds of monitoring. This area of law is rapidly changing, so if in any doubt contact a knowledgeable employment attorney in your state.
Can you sue your employer for illegally monitoring you at work?
Aside from state or local laws governing employees' privacy rights, an employer could be held liable for a tort claim like invasion of privacy for overly intrusive monitoring or surveillance.
This type of claim usually requires an intentional act, such as accessing the webcam on an employee's laptop without permission. Employers may want to avoid even the appearance of such an act, just to avoid the potential for this kind of claim.
Employers may also risk liability for damages caused by data breaches that result in the exposure or theft of employees' private information. An employer who logs all of their employees' internet activity on a personal device, without regard to whether it is work-related or not, could end up in possession of credit card numbers, medical information, and other sensitive material that could cause harm if not kept secure.
An employer does not want to have to tell their employees that a data breach on the employer's computers might have exposed them to the risk of identity theft.
Contact an Attorney
If you think your employer has illegally violated your privacy at work, contact an experienced employment lawyer right away to explore your legal options.
