When it comes to surveillance at work, you may be surprised at what your employer can legally do. Employers can legally monitor almost anything an employee does at work as long as the reason for monitoring is important enough to the business. Employers may install video cameras, read postal mail and e-mail, monitor phone and computer usage, use GPS tracking, and more. The reason for a particular type of workplace surveillance must be more important than an employee’s expectation of privacy to be legally permissible. For example, an employer most likely would not have a good enough reason to monitor a locker room but would be allowed to monitor conversations between customers and customer service employees. To learn more about your rights with respect to surveillance at work, read below:

1. Can my employer videotape me?

In order for an employer to legally videotape you in the workplace, there must be a legitimate business reason for the recording. Such purposes can include security reasons, time and motion studies, or other investigative processes. Camera recordings in areas where employees have a reasonable expectation of privacy, like locker rooms or bathrooms, is almost always prohibited.

If the recording is done by visible cameras, federal law seems to allow videotaping of individuals in the workplace, even without their consent or knowledge, as long as it is not done to commit a crime.

Where the recording is done by hidden cameras, courts place a higher burden of proof for the employer to demonstrate that the surveillance is for a legitimate business reason. This means that employers cannot simply say the recording is for security reasons, and must provide a reason beyond that in order to justify their use of hidden cameras. In places where employees are unaware of video surveillance, their reasonable expectation of privacy may be heightened. As a result, employers are generally well-advised to provide notice of hidden cameras in the workplace.

 Certain states have placed stricter restrictions on videotaping in the workplace. Connecticut (Conn. Gen. Stat. §31-48D) and Delaware (Del. Code § 19-7-705) require employers engaging in electronic monitoring by any means other than direct observation to give prior written notice to all employees who may be affected. The California Supreme Court (Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009) has also advised employers to disclose the existence of workplace video surveillance in writing to employees, and require employees to sign a receipt of notice.

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2. Can an employee record another employee?

In California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, you need the consent of all parties participating in the conversation in order to record it. These twelve states are known as “two party consent states” so employees cannot secretly record conversations with other employees without their consent.

In states without a two-party consent requirement, as long as one party gives consent, which can include the person recording the conversation as long as they actively participate, then the conversation can be legally recorded. If no party knows about the recording, then the situation may constitute wiretapping, which is subject to a different set of laws.

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3. Can my employer audiotape me?

In order for an employer to legally audiotape you, they must have some legitimate business purpose – but such a purpose is not always hard to find.

Federal law seems to allow for the audiotaping of any individual, even without his or her knowledge or consent, as long as it is not done to commit a crime. Some states have placed more restrictions on audiotaping, and may require that everyone involved in the conversation be aware of, and consent to, the taping. Some states, like Connecticut, have implemented stricter laws for employers, fining them for overuse of audiotape recorders . Federal labor laws also limit an employer’s ability to audiotape employees by prohibiting the secret monitoring of union meetings, including audiotaping.

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4. Can my employer monitor my telephone calls?

Under federal law , employers are only allowed to monitor business telephone conversations; if they realize that the call is personal, they must hang up. However, if you have been explicitly told not to conduct personal conversations on certain business phones, you run the risk of that conversation being monitored by your employer. Employers may also monitor your personal phone conversations if you have given them your consent. Some state laws provide further safeguards on telephone conversations by requiring that not only the employee, but the person on the other end of the phone line know about and/or consent to the call being monitored.

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5. Can my employer listen to messages on my voice mail?

While it appears that federal law may prohibit employers from listening to voice messages , it is unclear if it does in every case, especially for messages that an employee has listened to, but not yet deleted. Recent court cases have held that the employer may monitor voice messages. The best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.

The best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.

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6. Can my employer monitor my voice messages and emails if I have deleted them?

Yes. Voice mail and e-mail systems often retain deleted messages by permanently “backing them up” in your employer’s computer system, and your employer may access these backups.

Again, the best thing to do is to discourage anyone you know from leaving inappropriate messages on your employer’s voicemail system, to avoid embarrassment or possible discipline.

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7. Can my employer read my postal mail?

For the most part, this depends on your employer’s policy. At most workplaces there is a designated person who opens and sorts the postal mail; and in most cases such a person may accidentally, or even purposely, read any of your mail without any legal consequences.

Mail that is marked “Personal” or “Confidential,” however, may not be opened by other people besides yourself, unless there is a compelling (very important) business reason to open it.

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8. Can my employer monitor my computer and e-mail activities?

Yes. Your employer can monitor what is on your computer screen, your Internet activity, how long your computer has been idle, what you write in e-mails and even your online chat conversations. See our Computer Privacy page for more information

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9. Can an employer track my movements, speed, and/or break-time using GPS devices?

Yes. Many employers have been using devices such as GPS in company cars in order to track how fast employees are driving, how long a break they are taking (monitoring how long the vehicle has not moved), and where employees are located. GPS has also been used to track the movements and whereabouts of employees on or off the job, by placing tracking chips in cell phones.

In one case, the attachment of a GPS device to an employee’s personal vehicle as part of an employer’s investigation amounted to a workplace search that fell within the workplace exception to the warrant requirement, and thus did not require a warrant. However, the search was considered unreasonable because the scope exceeded work hours. See Matter of Cunningham v. New York State Dept. of Labor, 21 N.Y.3d 315 (N.Y. 2013).

While some unions have fought to protect workers against this type of monitoring, at this time, little law exists to protect workers against it.

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10. What other mechanisms are employers using to monitor employees, and is my employer allowed to use them?

Employers have been known to use security monitoring devices including finger prints, retinal scans, and even implainting computer chips in employees’ arms. In most cases, employers are allowed to monitor you however they wish, especially if you choose to work in a high-security occupation where high-tech security measures are necessary. Requiring an employee to place a computer chip in his/her arm may be going too far; but this technique is a recent development, and has not made its way to the courts yet.

A few states (Missouri, North Dakota, and Wisconsin) have passed laws which prohibit employers from requiring employees have a microchip containing an RFID device planted into their body.

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11. I feel that my employer has violated my privacy rights. What can I do?

After reading the above information, you might conclude that employees have limited privacy rights in the workplace. However, if you still feel that your privacy rights have been violated by your employer, contact your state department of labor, or an employment attorney licensed in your state.

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12. If I wear a headset at work, are conversations I have with my coworkers subject to monitoring by my employer?

Yes. Employers may monitor what is transmitted through the headset even though the employee is not speaking to a customer or client. Some headsets may be muted in order to prevent transmission of conversations employees do not want monitored. Otherwise, employees should take the same care they would exercise in speaking to customers or clients while speaking with other employees.

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13. If I use my personal phone for work can my employer monitor it?

The answer is not entirely clear, as the issue is relatively recent because for a long time people had no choice but to use the phone their employer provided. Many employers have policies regarding personal phone surveillance, including policies that allow employers to install monitoring software onto phones.

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