Copyright © 1993-2003. Utility Consumers' Action
Network / Privacy Rights Clearinghouse
Mar. 1993 Revised September 2002
This copyrighted document may be copied and distributed
for nonprofit, educational purposes only. The text of this document
may not be altered without express authorization of the Privacy
Rights Clearinghouse. This fact sheet should be used as an information
source and not as legal advice. PRC fact sheets contain information
about federal laws as well as some California- specific information.
Laws in other states may vary. Overall, our fact sheets are
applicable to consumers nationwide. This publication was originally
developed under the auspices of the University of San Diego.
Employee
Monitoring: Is There Privacy in the Workplace?
Employers want to be sure their employees
are doing a good job, but employees don't want their every
sneeze or trip to the water cooler logged. That's the essential
conflict of workplace monitoring.
New technologies make it possible for employers
to monitor many aspects of their employees' jobs, especially
on telephones, computer terminals, through electronic and
voice mail, and when employees are using the Internet. Such
monitoring is virtually unregulated. Therefore, unless company
policy specifically states otherwise (and even this is not
assured), your employer may listen, watch and read most of
your workplace communications.
Telephone Monitoring
Can my employer
listen to my phone calls at work?
In most instances, yes. For example, employers
may monitor calls with clients or customers for reasons of
quality control. However, when the parties to the call are
all in California, state law requires that they be informed
that the conversation is recorded or monitored by either putting
a beep tone on the line or playing a recorded message. (California
Public Utilities Commission General Order 107-B, www.cpuc.ca.gov/Published/Graphics/567.pdf)
Not every business is aware of this requirement, so your calls
might still be monitored without a warning. Federal law, which
regulates phone calls with persons outside the state, does
allow unannounced monitoring for business-related calls. (See
Electronic Communications Privacy Act, 18 USC 2510, et. seq.,
www.law.cornell.edu/uscode
.)
An important exception is made for personal
calls. Under federal case law, when an employer realizes the
call is personal, he or she must immediately stop monitoring
the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577,
583 (11th Cir. 1983)) However, when employees are
told not to make personal calls from specified business phones,
the employee then takes the risk that calls on those phones
may be monitored.
Privacy Tip: The best way to ensure the privacy
of your personal calls made at work is to use your own mobile
phone, a pay phone, or a separate phone designated by your
employer for personal calls.
If I wear a headset,
are my conversations with co-workers subject to monitoring?
Yes. The conversations you have with co-workers
are subject to monitoring by your employer in the same way
that your conversations with clients or customers are. If
you wear a headset, you should use the same care you would
if you were talking to a customer or client on the phone.
Some headsets have "mute" buttons which allow you to turn
off the transmitter when you are not using the telephone.
Can my employer
obtain a record of my phone calls?
Yes. Telephone numbers dialed from phone extensions
can be recorded by a device called a pen register. It allows
the employer to see a list of phone numbers dialed by your
extension and the length of each call. This information may
be used to evaluate the amount of time spent by employees
with clients.
Employers often use pen registers to monitor
employees with jobs in which telephones are used extensively.
Frequently, employees are concerned that the information gathered
from the pen register is unfairly used to evaluate their efficiency
with clients without consideration of the quality of service.
Computer
Monitoring
If you have a computer terminal at your job,
it may be your employer's window into your workspace. There
are several types of computer monitoring.
- Employers can use computer software that enables them
to see what is on the screen or stored in the employees'
computer terminals and hard disks. Employers can monitor
Internet usage such as web-surfing and electronic mail.
People involved in intensive word-processing and data
entry jobs may be subject to keystroke monitoring. Such
systems tells the manager how many keystrokes per hour
each employee is performing. It also may inform employees
if they are above or below the standard number of keystrokes
expected. Keystroke monitoring has been linked with health
problems including stress disabilities and physical problems
like carpal tunnel syndrome.
- Another computer monitoring technique allows employers
to keep track of the amount of time an employee spends
away from the computer or idle time at the terminal.
Is my employer
allowed to see what is on my terminal while I am working?
Generally, yes. Since the employer owns the
computer network and the terminals, he or she is free to use
them to monitor employees.
Employees are given some protection from computer
and other forms of electronic monitoring under certain circumstances.
Union contracts, for example, may limit the employer's right
to monitor. Also, public sector employees may have some minimal
rights under the United States Constitution, in particular
the Fourth Amendment which safeguards against unreasonable
search and seizure.
There may be some additional rights for employees
in California given specific statutes of that state. See the
paper by Los Angeles attorneys John Caragozian and Donald
Warner, Jr., titled "Privacy Rights
of Employees Using Workplace Computers in California,"
published in 2000.
How can I tell
if I am being monitored at my terminal?
Most computer monitoring equipment allows employers
to monitor without the employees' knowledge. However, some
employers do notify employees that monitoring takes place.
This information may be communicated in memos, employee handbooks,
union contracts, at meetings or on a sticker attached to the
computer.
In most cases, employees find out about computer
monitoring during a performance evaluation when the information
collected is used to evaluate the employee's work.
Electronic Mail
and Voice Mail
Is electronic mail private? What about voice
mail?
In most cases, no. If an electronic mail (e-mail) system is
used at a company, the employer owns it and is allowed to
review its contents. Messages sent within the company as well
as those that are sent from your terminal to another company
or from another company to you can be subject to monitoring
by your employer. The same holds true for voice mail
systems. Several workplace privacy court cases have been decided
in the employer’s favor. See for example:
When I delete
messages from my terminal, are they still in the system?
Yes. Electronic and voice mail systems retain
messages in memory even after they have been deleted. Although
it appears they are erased, they are often permanently "backed
up" on magnetic tape, along with other important data from
the computer system.
My employer's
electronic mail system has an option for marking messages
as "private." Are those messages protected?
In most cases, no. Many electronic mail systems
have this option, but it does not guarantee your messages
are kept confidential. An exception is when an employer's
written electronic mail policy states that messages marked
"private" are kept confidential. Even in this situation, however,
there may be exceptions. (See Smyth v. Pillsbury.)
Is there ever a circumstance
in which my messages are private?
Some employers use encryption to protect the
privacy of their employees' electronic mail. Encryption involves
scrambling the message at the sender's terminal, then unscrambling
the message at the terminal of the receiver. This ensures
the message is read only by the sender and his or her intended
recipient. While this system prevents co-workers and industrial
"spies" from reading your electronic mail, your employer may
still have access to the unscrambled messages.
Workplace Privacy Protections
What about my employer's
promises regarding e-mail and other workplace privacy issues.
Are they legally binding?
Not necessarily. Usually, when an employer
states a policy regarding any issue in the workplace, including
privacy issues, that policy is legally binding. Policies can
be communicated in various ways: through employee handbooks,
via memos, and in union contracts. For example, if an employer
explicitly states that employees will be notified when telephone
monitoring takes place, the employer generally must honor
that policy. There are usually exceptions for investigations
of wrong-doing. If you are not already aware of your employer's
workplace privacy policies, it is a good idea to become informed.
In Smyth v. Pillsbury, the employee’s termination
was upheld by the court, even though the company had a policy
of allowing e-mail use for personal communications. In this
case, the employee had sent messages to co-workers that were
deemed highly inappropriate for workplace communications.
(Smyth v. Pillsbury, C.A. NO. 95-5712, U.S. District Court
for the Eastern District of Pennsylvania, Jan.18, 1996, Decided,
Jan. 23, 1996, Filed. www.Loundy.com/CASES/Smyth_v_Pillsbury.html
)
Are there any laws
that deal with workplace privacy?
Currently there are very few laws regulating
employee monitoring. If you are concerned about this issue,
contact your federal legislators, especially the members of
the House and Senate Labor committees in Congress. (See PRC
Fact Sheet No. 18 "Privacy in Cyberspace," www.privacyrights.org/fs/fs18-cyb.htm.)
Are there organizations
that assist employees regarding workplace privacy?
Yes. There are several groups that are actively
involved in workplace monitoring issues and that advocate
stronger government regulation of employee monitoring activities.
National Work Rights Institute
166 Wall St.
Princeton, NJ 08540
(609) 683-0313
Web: http://www.workrights.org/
9 to 5, the National Association of
Working Women
231 W. Wisconsin Ave. No. 900
Milwaukee, WI 53203
(414) 274-0925
Hotline (800) 522-0925
Web: http://www.9to5.org/
Workplace Fairness
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004-2400
(212) 549-2500
Publications Ordering: 1-800-775-ACLU (2258)
Web: http://www.aclu.org/
The American Civil Liberties Union (ACLU) also
has information related to workplace privacy issues that are
not discussed in this fact sheet. Some of the issues of growing
concern involve psychological testing, drug testing, polygraph
or lie-detector testing and off-the-job surveillance of employees.
Visit the ACLU’s Web site at http://www.aclu.org/.
Labor groups are taking a stronger interest
in workplace monitoring. If your union represents employees’
interests regarding workplace monitoring, please contact the
Privacy Rights Clearinghouse so we can include information
in this publication. prc@privacyrights.org
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