|
<
Library - Employment Law
Employee Rights
ARE
EMPLOYEES ENTITLED TO PRIVACY AT WORK?
The United States and California Constitutions guarantee the
right to privacy. The right to privacy presumably imposes
limitations on an employer’s right to install surveillance camera at
work and monitor the phone calls, emails, and computer activities of
its employees while in the workplace.
However, employers have argued that employees lacked a
reasonable expectation of privacy in the workplace and employers
have legitimate objectives in the surveillance and monitoring of the
work premises. Such objectives would include concerns about
violence in the workplace, crime prevention, lost productivity,
malicious software invasions, dissemination of proprietary
information, and employer liability for inappropriate Internet and
computer usage.
The following are some of the areas in which employers may
encroach upon an employee’s privacy rights at work:
Workplace Video Surveillance
Employers may install electronic surveillance on its work
premises. However, effective January 1, 1999, the Labor Code
prohibits employers from making audio or video recordings of
employees in specific work areas considered to be private.
Such areas include restrooms, locker rooms, or rooms designated by
an employer for changing clothes. An employer may monitor these
areas by video or audio only if authorized by court order.
Should any recording be obtained in violation of the statute, such
recording cannot be used for any purpose. The statute applies to
all private and public employers, except for the federal government.
While the law recognizes an employer’s right to protect its
business against crimes by using video or other electronic
surveillance, such use must respect the employees’ rights to
privacy. Some video surveillance in the workplace may be considered
an unreasonable intrusion by the employer into their employees’
privacy. In the event of such conflict between the right of the
employer to protect its business and the right of the employee to
privacy, the courts will balance these competing rights.
Telephone calls
An employer may listen to an employee’s phone calls at work.
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. 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.
Under federal case law, when an employer knows the call is
personal, the employer must immediately stop monitoring the call.
Interception or monitoring of telephone calls when the employer
knows that the call is a private call and is made with the
expectation of privacy violates federal law. If the employer has a
policy prohibiting personal calls, however, employees could still be
terminated for violating the employer's work rules.
Computer and Internet activities
Employers may legally monitor its employees’ computer and
internet activities in the workplace. According to the federal
Electronic Communications Privacy Act (ECPA), an employer-provided
computer system is the property of the employer. Therefore,
employers that provide employees with a computer system and Internet
access are free to monitor almost everything that the employee may
do with the computer and Internet access so provided. Employers may
emphasize this right to monitor computer and internet use by issuing
a written policy to its employees regarding such use.
At present, there are very few laws that spell out very
clearly an employee’s right of privacy at work. Even more
importantly, there are very few laws that directly regulate an
employer’s monitoring of its employees in the workplace. If an
employee is concerned about privacy issues at work, seeking
experienced legal help may be a smart move.
©
Law Offices C. Joe Sayas, Jr.
|
