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Employee Privacy Rights: What Businesses Need to Know

Americans value their privacy, and expect to be free of unwelcome intrusion. However, once in the workplace, employers have a legitimate interest in monitoring work—this happens for various reasons, including keeping workers safe, preventing theft and maintaining productivity. Technology now allows much broader employee monitoring, from tracking computer/internet usage at work to wearable devices that physically track employees.

It’s the HR pro’s role to understand not only what’s legal, but what makes sense for your organization. What follows is an overview to help inform company policies, but always check with your legal counsel to make sure you’re conforming with your state’s laws.

Employee Privacy Rights Defined

Employee privacy rights limit the extent to which employers can track or monitor employees. The advent of technology, including the widespread use of company-owned devices, has opened many new ways for companies to monitor employees, potentially beyond the workday.

The first question that comes up when discussing employee privacy is, “is it legal?” The answer is, generally, yes—especially when employees use company-owned devices, Wi-Fi and telephones. But any type of monitoring has stipulations, and these should be communicated to employees. 

Monitoring an Employees Use of Computer and Telephone

Employees generally understand company-owned computers, tablets and mobile phones are not private, but it’s a good idea to clearly spell this out in company policy documents that employees sign as part of onboarding.

Video Surveillance in the Workplace

With small, affordable web-based video monitoring widely available, many companies are using cameras to keep tabs on employee activities. While these devices can be valuable in monitoring theft and keeping employees safe, some rules need to be followed. Employees and customers should be informed of video surveillance through signage. Laws prevent audio recordings, and camera use is generally limited to monitoring employee productivity and enhancing security. Cameras are normally not permitted in break rooms, locker rooms or other locations where privacy would be expected.

Drug Testing and Background Checks

Companies have the right to drug test employees, but legally cannot release these records. Laws vary by state, and some states do restrict drug testing, limiting it to workers in jobs that have a higher safety risk or to test employees who appear to be impaired at work.

Sharing Information After an Employee Departs

Whether an employee is terminated or leaves on his or her own accord, HR experts recommend sharing minimal details around why the person is departing. This is particularly true for employees who resign for a personal medical reason.

With regard to employee references, while it’s legal for a private company to share employee information to a prospective employer, HR and legal experts generally advise against sharing Social Security numbers, pay level or work schedule.

Federal EEOC laws require employee personnel files be kept for one year from date of departure, while payroll records and medical records (e.g., doctor’s notes or drug test results) need to remain on file for three years and benefits documents should remain on file for six years. All of these documents need to be secured to maintain employee privacy, and sharing certain documents (tax forms, for example) with individuals outside of the HR department violates privacy rules. 

Tracking Employees with GPS

Although this isn’t governed by federal law, many states have banned the use of GPS devices to track an employee’s whereabouts without the employee’s consent. Company-owned mobile devices can be used to track an employee, even outside of work hours, but doing so is not advisable. Many companies use GPS trackers on company-owned vehicles, and this is generally permitted to track deliveries or keep tabs on expensive equipment. Any use of GPS tracking needs to be accompanied with a policy that outlines how and why the technology is used.

Monitoring Employees Social Media Activity

It’s legal for employers to monitor employees’ personal social media accounts, and it’s common to look at these accounts when making hiring decisions. It’s also legal for companies to set policies to limit personal social media use during work hours and what work-related news can be shared publicly.

Searching Employer Owned Property

Employer-owned property (desks, file cabinets, lockers) are subject to searches. This can extend to an employee’s vehicle, if parked on company property. Generally, this needs to be done in the context of an investigation, and employers cannot coerce employees to consent to a search of private property. Any search policy should be clearly outlined in company policy manuals.

Rules for Remote Workers

With many workers suddenly shifting to remote work during the COVID-19 pandemic, companies considered using software to monitor productivity. A Gartner Group report found 26 percent of employers surveyed reported using software to monitor remote workers. This software can monitor keystrokes, measure active time, observe what websites are visited and more. Legal experts recommend letting employees know about the potential for this sort of monitoring through a remote work policy.

Vaccine Status

Another employee privacy issue related to the COVID-19 pandemic is vaccine status. Employers are legally allowed to ask employees to reveal whether they have been vaccinated, because the Americans with Disabilities Act allows for policies which require individuals not pose a direct health threat to other individuals in the workplace. In some cases, this may require employers to make accommodations for employees who are not vaccinated.

As you work to outline this and other policies in your workplace, strike a balance between respecting an employee’s privacy with business reasons for surveillance. Once policies are in place, communicate them clearly so employees understand their rights.

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