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Fact Sheet # 7: Employee Monitoring:
Is There Privacy in the Workplace?
Copyright 1993, 1994, 1995, 1996, 1997. Utility
Consumers' Action Network.
Mar. 1993 / Revised August 1997.
This copyrighted document may be copied and
distributed for nonprofit, educational purposes only. The text of
this document may not be altered without express authorization of
the Privacy Rights Clearinghouse. This fact sheet should be used
as an information source and not as legal advice. PRC materials
are designed primarily for California residents. Laws in other
states may vary. This publication was developed under the
auspices of the University of San Diego.
Privacy Rights Clearinghouse
5384 Linda Vista Rd. #306
San Diego, CA 92110
Voice: (619) 298-3396
Fax: (619) 298-5681
E-mail: prc@privacyrights.org
http://www.privacyrights.org
Employee Monitoring:
Is There Privacy in the Workplace?
Employers want to be sure their employees are doing a good
job, but employees don't want their every sneeze or trip to the
water cooler logged. That's the essential conflict of workplace
monitoring.
New technologies make it possible for employers to monitor
many aspects of their employees' jobs, especially on telephones,
computer terminals and through electronic and voice mail. Such
monitoring is virtually unregulated. Therefore, unless company
policy specifically states otherwise, your employer may listen,
watch and read most of your workplace communications.
Telephone Monitoring
Can my employer listen to my phone calls at work?
In most instances, yes. For example, employers may monitor
calls with clients or customers for reasons of quality control.
However, when the parties to the call are all in California,
state law requires that they be informed that the conversation is
recorded or monitored by either putting a beep tone on the line
or playing a recorded message. (California
Public Utilities Commission General Order 107-B.) Not every
business is aware of this requirement, so your calls might still
be monitored without a warning. Federal law, which regulates
phone calls with persons outside the state, does allow
unannounced monitoring for business-related calls. (See
Electronic Communications Privacy Act, 18 USC 2510, et. seq.)
An important exception is made for personal calls. Under
federal law, when an employer realizes the call is personal, he
or she must immediately stop monitoring the call. However, when
employees are told not to make personal calls from specified
business phones, the employee then takes the risk that calls on
those phones may be monitored.
Privacy Tip: The best way to ensure the privacy of your
personal calls made at work is to use a pay phone or a separate
phone designated by your employer for personal calls.
If I wear a headset, are my conversations with co-workers
subject to monitoring?
Yes. The conversations you have with co-workers are subject to
monitoring by your employer in the same way that your
conversations with clients or customers are. If you wear a
headset, you should use the same care you would if you were
talking to a customer or client on the phone. Some headsets have
"mute" buttons which allow you to turn off the
transmitter when you are not using the telephone.
Can my employer obtain a record of my phone calls?
Yes. Telephone numbers dialed from phone extensions can be
recorded by a device called a pen register. It allows the
employer to see a list of phone numbers dialed by your extension
and the length of each call. This information may be used to
evaluate the amount of time spent by employees with clients.
Employers often use pen registers to monitor employees with
jobs in which telephones are used extensively. Frequently,
employees are concerned that the information gathered from the
pen register is unfairly used to evaluate their efficiency with
clients without consideration of the quality of service.
Computer Monitoring
If you have a computer terminal at your job, it may be your
employer's window into your workspace. There are several types of
computer monitoring.
1. Employers can use computer software that enables them to
see what is on the screen or stored in the employees' computer
terminals and hard disks.
2. People involved in intensive wordprocessing and data entry
jobs may be subject to keystroke monitoring. This system tells
the manager how many keystrokes per hour each employee is
performing. It also may inform employees if they are above or
below the standard number of keystrokes expected. Keystroke
monitoring has been linked with health problems including stress
disabilities and physical problems like carpal tunnel syndrome.
3. Another computer monitoring technique allows employers to
keep track of the amount of time an employee spends away from the
computer or idle time at the terminal.
Is my employer allowed to see what is on my terminal while
I am working?
Generally, yes. Since the employer owns the computer network
and the terminals, he or she is free to use them to monitor
employees.
Employees are given some protection from computer and other
forms of electronic monitoring under certain circumstances. Union
contracts, for example, may limit the employer's right to
monitor. Also, public sector employees may have some minimal
rights under the United States Constitution, in particular the
Fourth Amendment which safeguards against unreasonable search and
seizure.
How can I tell if I am being monitored at my terminal?
Most computer monitoring equipment allows employers to monitor
without the employees' knowledge. However, some employers do
notify employees that monitoring takes place. This information
may be communicated in memos, employee handbooks, union
contracts, at meetings or on a sticker attached to the computer.
In most cases, employees find out about computer monitoring
during a performance evaluation when the information collected is
used to evaluate the employee's work.
Electronic Mail and Voice Mail
Is electronic mail private? What about voice mail?
In most cases, no. If an electronic mail (e-mail) system is
used at a company, the employer owns it and is allowed to review
its contents. Messages sent within the company as well as those
that are sent from your terminal to another company or from
another company to you can be subject to monitoring by your
employer. The same holds true for voice mail systems. Court cases
are currently pending in which employees' rights to privacy on
electronic mail systems are being considered.
When I delete messages from my terminal, are they still in
the system?
Yes. Electronic and voice mail systems retain messages in
memory even after they have been deleted. Although it appears
they are erased, they are often permanently "backed up"
on magnetic tape, along with other important data from the
computer system.
My employer's electronic mail system has an option for
marking messages as "private." Are those messages
protected?
In most cases, no. Many electronic mail systems have this
option, but it does not guarantee your messages are kept
confidential. An exception is when an employer's electronic mail
policy states that messages marked "private" are kept
confidential.
Is there ever a circumstance in which my messages are
private?
Some employers have begun to use encryption to protect the
privacy of their employees' electronic mail. Encryption involves
scrambling the message at the sender's terminal, then
unscrambling the message at the terminal of the receiver. This
ensures the message is read only by the sender and his or her
intended recipient. While this system prevents co-workers and
industrial "spies" from reading your electronic mail,
your employer may still have access to the unscrambled messages.
Workplace Privacy Protections
What about my employer's promises regarding e-mail and
other workplace privacy issues. Are they legally binding?
Yes. When an employer states a policy regarding any issue in
the workplace, including privacy issues, that policy is legally
binding. Policies can be communicated in various ways: through
employee handbooks, via memos, and in union contracts. For
example, if an employer explicitly states that employees will be
notified when telephone monitoring takes place, the employer must
honor that policy. If you are not already aware of your
employer's workplace privacy policies, it is a good idea to
become informed.
Are there any laws that deal with workplace privacy?
Currently there are very few laws regulating employee
monitoring. If you are concerned about this issue, contact your
federal legislators, especially the members of the House and
Senate Labor committees.
Are there organizations which assist employees that are
subject to monitoring?
Yes. There are several groups which are actively involved in
workplace monitoring issues and which advocate stronger
government regulation of employee monitoring activities. These
groups include: