With millions of American employees working remotely due to the coronavirus pandemic, employers are increasingly turning to monitoring software and other forms of surveillance to keep tabs on worker productivity. The idea of your employer peering over your shoulder while you work in your own home might seem disconcerting. But is it legal?
As a general rule, if you're using your employer's equipment while on your employer's network, your employer has the right to monitor everything you do, whether you're working remotely or in the workplace. Because your employer is providing the communications technology, they have the right to track your activities. This includes your internet browsing, how you are using your computer (including the number of keystrokes and the actual words you type), what you store on your computer, and the contents of your work email.
For many employees, working from home can mean a greater tendency to intermingle work and personal devices or networks. This can open an employee up to more employer monitoring of non-work activities. For example, if you're viewing your personal email account on your work computer, your employer can likely monitor your personal email. Similarly, if you're using a personal device, but are logged on to a work network, your employer can track your activity on that device. And if you're conducting personal business on a company-provided cell phone, your employer can monitor everything on the phone, including text messages, call logs, and photos.
On the other hand, if you're using your own device and your own internet connection, it's much less likely that your employer has the right—or the ability—to track what you do. You can help ensure the privacy of your personal communications by keeping your personal devices and networks separate from your work devices and networks.
From a privacy perspective, one difference between working from home and working in an office is that remote workers typically are not using a company phone network, so employers can't monitor their phone calls. In an office environment where employees use landlines, your employer can record or monitor calls on your work phone for quality control purposes, as long as they stop listening in as soon as they realize that a call is personal. But your employer generally doesn't have the ability to listen in on your calls when you're working from home.
Regardless of whether you're working remotely or in the workplace, the law doesn't provide much privacy protection for employees, but there are some limits on how far an employer can go.
There are two federal laws governing invasion of privacy that are potentially applicable to the workplace: The Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, and the Electronic Communications Privacy Act (ECPA), which bans third parties from intercepting or disclosing electronic communications without prior authorization.
However, the Fourth Amendment only applies to government actors—not private employers. So unless you're a government employee, the Fourth Amendment doesn't protect your privacy in the workplace. (And even if you're a government employee, the law still permits "reasonable" searches.)
The ECPA was designed primarily to modernize laws on government wiretapping by adding restrictions on electronic surveillance. Although it doesn't specifically exempt private employers, it contains three exceptions that are generally interpreted to have the same effect. The ECPA's prohibition on intercepting electronic communications doesn't apply if:
The ECPA does provide some privacy protection with respect to telephone conversations. Under the ECPA, employers typically must obtain consent from at least one of the parties before monitoring and recording a company phone call. They also must stop monitoring when they realize that a call is personal in nature.
Some states have passed laws that make it harder for employers to monitor their employees. For example, California, Florida, and Maryland have laws that require everyone involved in an electronic communication or telephone call to consent to the monitoring. And a few states, such as Connecticut and Delaware, require employers to give notice to employees before monitoring can take place.
Some state constitutions include a right to privacy, and some states also have general invasion of privacy laws. Courts interpreting these laws will typically weigh the reasonableness of the employee's expectation of privacy against the business interest of the employer in monitoring the communication. But for the most part, state courts have found that employers do have a legitimate business interest in monitoring their employees' communications.
If you think your employer has illegally violated your privacy while you are working remotely, contact an experienced employment lawyer to explore your legal options.