Employee Monitoring: Privacy in the Workplace

Everett Culbertson

Employee privacy in relation to online technology has proven to be one of the

most controversial issues in Internet law. Technology has in many ways moved faster
than the law, and judges and legislators find themselves having to play catch up as
issues arise regarding the need to balance workers and employers rights. Employee
privacy questions begin even before an employee is hired. Increasingly, employers are
making use of Google as a tool in prescreening employees, seeing what online traces
the worker has left regarding work habits, hobbies, and political beliefs.
While public records are accessible to all, this does not mean that an employer
can discriminate against a candidate if the worker belongs to a protected status,
according to the terms of the Equal Employment Opportunity Commission 1: for example,
if an employer discovers that the prospective employee has a disability or is a member
of a historically-discriminated against minority group based upon an Internet search, the
employer cannot use that information against the candidate. In fact, some lawyers
advise not Googling candidates given that if the prospective employee is rejected and
is able to show that such information was uncovered in an Internet search, then the
candidate could allege that the impermissible criterion was the reason he or she was
not hired, thus requiring the employer to demonstrate that the job-seeker was not
discriminated against based upon his or her status (Siegel, 2009).

1 The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for

enforcing federal laws that make it illegal to discriminate against a job applicant or
an employee because of the person's race, color, religion, sex (including
pregnancy), national origin, age (40 or older), disability or genetic information.
(U.S. Equal Employment Opportunity Commission, n.d.)

For some employers, however, Googling is not enough and they wish to discern
more about the candidate based upon private social networking information and will ask
for passwords and other log-in information to all the social media sites used by the
candidate. While membership in a protected category of employment is not permitted to
be taken into hiring considerations, political views, drinking, and hobbies the employer
disapproves of are legal ground for not hiring an individual (Guerin, n.d.). Given the
growing pervasiveness of this, a number of states have taken action to limit this
practice, prohibiting employers from requesting or requiring passwords to social media
sites and Facebook, the most popular online social networking site, made soliciting
passwords a violation of the site's code of conduct (Guerin, n.d.).
Once he or she is hired, however, employees should assume that all
communications on work-related computers are not private. The federal law, the 1986
Electronic Communications Privacy Act2, prohibits unauthorized interception of various
electronic communications, including e-mail but the law exempts service providers
from its provisions, which is commonly interpreted to include employers who provide email and Net access (Schulman, n.d.). Many employers inform employees that their
online transactions are monitored, and courts have largely concurred with employers
that organizations have a right to ensure that employees are not accessing potentially
hazardous sites that could bring down the work Intranet and hamper productivity and
that in general that there can be no reasonable expectation to privacy on work
2 The ECPA, as amended, protects wire, oral, and electronic communications while
those communications are being made, are in transit, and when they are stored on
computers. The Act applies to email, telephone conversations, and data stored
electronically. (U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Assistance, n.d.)

computers (Schulman, n.d.). Even if an employer informs employees that email

communications are not monitored and are personal, in Smyth v. Pillsbury Co. it was
ruled that there was no reasonable expectation of privacy when communicating on an
employers email system given a company has the right to restrict conduct it deems
offensive and harmful to its business (Schulman, n.d.).
As the line between work and home becomes more blurred, new questions arise,
such as whether devices used for the employees personal communications can also be
searched by the employer. For example, a text message is generally a private
communication between the sender and the receiver. However, if the phone or
computer on which the text message is sent belongs to the employer, even if the
employee also uses it as a personal means of communication, the employer has a
legitimate purpose in searching an employees phone or computer where the message
was received (Smith & Burg, 2012). An e-mail on a private account, if used for the
employers work or saved to the employers system, can probably be reviewed by the
employer as well, even if the employee logs on using a home laptop (Smith & Burg,
2012).
In one instance, even private emails used on a private computer were allowed to
be used as grounds to fire an employee. The employee in question frequently brought
his own laptop to work to conduct business for the competitorhis boss entered his
office while he wasnt there, and found an email concerning the brokering of jobs to the
wifes company on the laptop, printed the email and terminated the employee, using
the email as grounds for dismissal (Narisi, 2012). The court agreed with the employer
given that the laptop was on the employers premises and was sent using the

employers network (Narisi, 2012). In a similar case, when an employee logged on to a

personal account at work, forgot to log out, and was snooped on when she was away
from her desk, the courts similarly ruled that she had no expectation to privacy in such
an instance and that the offending email could be used against her (Narisi, 2012).
In general, the courts have tended to favor employers given the assumption that
employees have relatively minimal expectations of privacy within the workplace itself
and on technology which is provided by employers. So long as employers are not in
violation of federal civil rights laws or impinge upon private communications, on private
devices outside of work, employees must tread with caution. Even if employers do not
specifically state that employees have no expectation of privacy, employees cannot
assume they are not being monitored and would be best advised to behave as if Big
Brother was indeed watching them at all times while at work.

Works Cited
Guerin, L. (n.d.). Can Potential Employers Check Your Facebook Page? Retrieved
from www.nolo.com: http://www.nolo.com/legal-encyclopedia/can-potentialemployers-check-your-facebook-page.html
Narisi, S. (2012, July 24). Can company read personal e-mail sent at work? Retrieved
from www.itmanagerdaily.com: http://www.itmanagerdaily.com/can-companyread-personal-e-mail-sent-from-work/
Schulman, M. (n.d.). Little Brother is watching you. Retrieved from www.scu.edu:
http://www.scu.edu/ethics/publications/iie/v9n2/brother.html
Siegel, P. (2009, February). Should Employers "Google" Applicants? Retrieved from
www.irmi.com: https://www.irmi.com/articles/expert-commentary/shouldemployers-google-applicants
Smith, D. V., & Burg, J. (2012, November/December). What Are the Limits of
Employee Privacy? Retrieved from www.americanbar.org:
http://www.americanbar.org/publications/gp_solo/2012/november_december2
012privacyandconfidentiality/what_are_limits_employee_privacy.html
U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance.
(n.d.). Electronic Communications Privacy Act of 1986. Retrieved from Justice
Information Sharing: https://it.ojp.gov/privacyliberty/authorities/statutes/1285
U.S. Equal Employment Opportunity Commission. (n.d.). About the EEOC: Overview.
Retrieved from U.S. Equal Employment Opportunity Commission:
http://www.eeoc.gov/eeoc/