Think Before You Send That Email: Don’t Expect Privacy in the Workplace

privacy in the workplaceMost employees understand that they typically give up some privacy while at the workplace. However, most of those workers do not know to what degree their privacy rights are relinquished until they are called on the carpet for a workplace violation. They may find that their communications and actions have been under surveillance, including reading email, recording telephone conversations, reviewing voice mail, monitoring computer and internet activity and even video recording of employee actions.
As one of the most ubiquitous methods of business communication, email is frequently an issue as to privacy in the workplace. It is common for employees’ inboxes to fill up fast throughout the day, and it is common for employees to send several emails every day as part of their job duties. A few of these emails may be personal messages to and from your friends and family. You may also receive your share of unsolicited email (spam). You might forward information, a funny photo, or a good joke to a friend. Without your knowledge (because you barely looked at the email or you didn’t scroll down to look at the entire email), one of these emails contains sexual innuendo or improper language. Your friend not only gets the forwarded email, but so does your company’s IT department. The email is flagged for content and sent to your supervisor who will likely discipline or terminate you. Thinking your privacy has been violated, you find yourself on the defensive. However, much to your surprise, you find out, under federal and state law, there is little or no expectation to privacy in the workplace.
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In most cases, actions taken against private employers for invasion of privacy have not been successful. Courts have held that:

  • Employees have no legitimate expectation of privacy.
  • Employers may have legitimate reasons for monitoring employee communications, such as:
    • Employers may have to protect against computer viruses.
    • Preventing workplace harassment and bullying.
    • Reviewing and archiving communications in the case of lawsuits against the company.

Employees who, for a variety of reasons, take legal action against an employer are likely to find the employer’s surveillance of the employee’s communications and actions to be used against them by the employer. This would be the same information that the employer claims they are required to monitor and archive in case someone brings a lawsuit against the company.
Though privacy in the workplace should not be expected, it does not change the fact that every United States citizen has a right to privacy under the fourth amendment of the U.S. Constitution. Also, there are state laws being considered and enacted all the time. Some of these laws under consideration are in response to rapidly changing communication and surveillance technologies.
With the rapid changes in the law and modern technology, legal issues regarding privacy in the workplace have become more complex. Also, employers have been known to use your lack of expectation of privacy in the workplace to intimidate, humiliate and to shield or hide workplace harassment. If you feel your employer has crossed the line when it comes to privacy in the workplace, you will need legal expertise to determine if you have an action. You should seek out an experienced employment law firm and set up a consultation immediately.

Protect Your Privacy in the Workplace

Employers are utilizing new technologies to monitor employees on computers, telephones, email and video.  There are very few federal laws that protect a worker’s privacy.  Therefore, if you are using company owned devices your employer can legally read your email conversations, listen to your personal telephone calls and check what websites you are visiting.
According to a 2007 American Management Association’s “Electronic Monitoring & Surveillance Survey”, 73% of employers monitored email messages, 66% scrutinized Web surfing, 48% watched over video surveillance, and 45% checked keystrokes and computer files.  In some cases, employees are unaware of the company’s privacy policies and are being monitored oblivious to the watchful eye.
Because privacy rights are virtually unregulated, it is the employee’s responsibility to become informed of the company’s policies and to regulate their usage on company devices.  Privacy policies can be presented in memos, employee handbooks or at meetings.  It can even be as simple as a sticker on a computer or phone that displays the company’s rights to surveillance.
Always be mindful of what you say and do at work.  Improper usage of employee technology can lead to termination.  Therefore, it is important that anything that is private is communicated through personal devices or emails.  Use a mobile phone or pay phone for personal calls, and create your own personal email for discussions that are not work-related.  Be wary of your social network sites as well.  According to a 2009 survey, 60% of executives believe they have a right to monitor employee’s social networking sites to see how employees portray themselves online.  Don’t ever bad-mouth your workplace or boss on social networking sites, as there are no laws to protect you from termination.
If you believe that your employer is monitoring you for discriminatory reasons, it is important to take the necessary precautions to protect yourself. If you are being monitored more than other employees, or are being isolated as the sole employee being watched, file a complaint with HR and document any instances that attest to your claim.  It may be advisable to consult an attorney if workplace discrimination is present.
If you are pursuing a legal claim against your employer, or even if you are just contemplating one, the most important way to protect yourself is to always use personal means of communication when contacting your attorney or a prospective attorney.  Attorney-client communications may not be privileged if they are taking place over your work phone, email or other device owned and monitored by your employer.
Always assume that your workplace communications are being monitored, and protect your rights by avoiding personal conversations on company property.