Private Employers Have More Rights to Monitor Employees

November 8, 2017|

By Ed Enoch

I recently heard about a manager who installed video cameras aimed directly at the employee workspace and at the door. The clear implication of these cameras seemed to be to monitor the employees’ “every move.” The employees were upset and felt this constant monitoring was an invasion of their privacy.

Unfortunately for them, the manager was within his rights to put up the cameras.

Private employers have much greater latitude to monitor, record and access employee behavior than do government employers. Our constitutionally protected right to privacy is a curb on government invasions of privacy, not private employers.

Private employers do have to comply with the Electronic Communications Privacy Act. However, that law was passed in 1986 and is woefully out of date when it comes to addressing today’s technology. Plus, the law contains a very large “business purposes” exception.

Employees may have rights to privacy in private businesses, but generally only if the employer allows the right to be exercised. Privacy in the private sector depends on whether the employee had a “reasonable expectation” of privacy.

Some situations naturally create reasonable expectations of privacy. Employers do not have a right to install cameras in restrooms or showers. In other situations, the employer may create an expectation of privacy. For instance, if each employee is issued a locker and allowed to install their own lock without having to provide the key or combination to the employer, the employee likely has a reasonable expectation of privacy in that locker.

For private businesses, the key is to have policies that establish the level of privacy, particularly for electronics such as laptop computers and cell phones. A policy that establishes that the employer has a right, at any time, to access and view information on company-issued equipment goes a long way toward lowering employees’ expectations of privacy. One company I know of splashes this policy warning on the startup screen of each company computer, so employees are constantly warned.

For telephone communications in Georgia, at least one person on the conversation must know the conversation is being monitored or recorded – but both people do not have to know. The same is true for oral conversations or for email. Again, the private employer can work around this by informing employees that their communications are subject to monitoring.

This is also a place where the shoe can be on the other foot. Employers cannot generally prohibit employees from recording communications the employee participates in, unless the subject matter is protected, such as company trade secrets.

The moral of this story: the boss may be watching, but she needs to tell you first!

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