Workplace Privacy Rights

We assist clients regarding workplace privacy rights and the applicable state or federal rules and regulations. In general, employers can monitor employee activities to increase productivity and to avoid workplace violations. Employers can use a specific type of software to monitor their network activities such as emails, phone calls, internet, or e-commerce transactions. However, the courts have held that this form of monitoring is subject to the employee’s reasonable expectation of privacy.

The courts have consistently held the main issue is whether an employee has a “reasonable expectation of privacy” in the questioned activity. Employers can monitor internet usage or business email communications as a matter of right. Yet, they cannot conduct surveillance in bathrooms, locker rooms, or private locations. Also, employers can be held liable for sharing an employee’s termination reasons, arrests, convictions, credit reports, misconduct reports, medical information, or confidential communications with a third party without proper authorization.

It seems that most employers are interested in a potential or actual employee’s social media activity. As such, they could review his or her social media accounts to make employment-related decisions. It is important to note that California Labor Code § 980 prohibits employers from requesting disclosure of usernames or passwords of social media accounts. This statute makes it unlawful for employers to force an employee to access personal social media accounts in his or her presence. This statute states that an employer shall not require or request an employee or applicant for employment to do any of the following:

• (1) Disclose a username or password for the purpose of accessing personal social media.
• (2) Access personal social media in the presence of the employer.
• (3) Divulge any personal social media, except as provided in subdivision (c).
• (c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
• (d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
• (e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Employers can review an actual or prospective employee’s social media profiles on various websites (e.g., Facebook, Instagram, Twitter) and make employment-related decisions according to the current rules and regulations. An employer can review employee’s online activities and decide whether that employee is suitable for employment. However, it should be noted that, California is an “at-will” employment jurisdiction meaning that employers are allowed to end employment contracts at any time.

The federal Constitution protects an individual’s privacy rights by prohibiting unreasonable searches and seizures. The courts have evaluated the legal rights of individuals when it comes to unlawful searches and seizures. For example, they have assessed whether a hacker in possession of child pornography would be subject to the Fourth Amendment’s restrictions. In addition, the U.S. Supreme Court has reviewed and reassessed the principle of reasonable expectation of privacy in the context of secretly monitoring phone booth conversations.

There are various rules and regulations when it comes to workplace privacy rights. For example, the Electronic Communications Privacy Act, and its subparts, are designed to manage workplace monitoring. In essence, these federal statutes prohibit employers from illegally intercepting electronic communications subject to certain exceptions. Therefore, it is important to speak with a qualified attorney about your legal rights and responsibilities.