Employee Surveillance: How Big Brother Could Be Your Boss

When it comes to employee surveillance, will your electronic communications be spared from your employer's watchful eye? The United States District Court for the District of New Jersey will soon consider this question in the context of social networks. Two Houston restaurant employees are suing their former employer, alleging their termination was based on their boss improperly accessing personal comments they made outside of work on a private, password-protected social network: MySpace. See Pietrylo v. Hillstone Restaurant Group, Docket No. 2:06-cv-05754 (D.N.J. 2008). Given the limitations that federal and state laws place on an employer's monitoring authority, it is unlikely the court will hold that Houston's authority includes private online communications on a social network such as MySpace. Employers should be cautious when walking the fine line between authorized employee-monitoring activities and private employee communications, as surveillance on social networks may expose them to potential legal liability.

The Electronic Privacy Communications Act of 1986 (EPCA) already provides some latitude to employers when monitoring employee conversations. Employers are protected under the EPCA so long as the monitoring occurs (1) in the ordinary course of business, or (2) with the employee's express or implied consent. Workplace-generated communications including voice mail, email, and other online activities are generally open to employer surveillance so long as monitoring is not excessive and serves a legitimate business purpose. See Fraser v. National Mutual Insurance Co., 352 F.3d 107, 113 (3rd Cir. 2003). In fact, according to a 2007 survey conducted by the American Management Association (AMA), sixty-six percent of companies claimed to monitor employee Internet activities, citing potential liability as the primary reason for monitoring.

Videotaping employees in the workplace, on the other hand, raises additional concerns. As a general matter, if you videotape people in public places, even if they have not consented to being recorded, you will not be liable for a violation of "intrusion upon seclusion" because by exposing themselves to public observation, people are not entitled to the same level of privacy that they would enjoy within their own homes. Federal and state laws, however, limit the right to record the activities of people engaged in private activities in places where they would reasonably expect to be private.

In regard to the expectation of employee privacy in the workplace, the Supreme Court has recognized that "operational realities of the workplace," such as actual office practices or regulations, may weaken an employee's privacy expectation. Therefore, "the objective component of an employee's purported expectation of privacy must be assessed in the full context of the particular employment relation." See O'Connor v. Ortega, 480 U.S. 709, 717 (1987). As a result, the legality of videotaping an employee without his/her consent will depend on several aspects of the workplace environment and employment relationship in question. In determining whether an employee has a reasonable expectation of privacy in his/her workplace, lower federal courts have typically examined matters including "whether the work area was given over to an employee's exclusive use, the extent to which other employees had access to the work area, and whether office regulations placed employees on notice that certain areas were subject to employer intrusions." See United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). Many jurisdictions consider several additional factors when assessing the legality of a particular company's surveillance system including whether the video camera was publicly viewable or hidden, whether the work area was open to public view, and whether the video included sound.

Generally, the scope of employer authority is dictated by the particular company's privacy policy. Employers should develop and implement consistent policies and procedures for monitoring employee activity that balance employee privacy interests with employer efficiency concerns. These policies should be made available to all employees. It is probably best for those employers who intend to use any form of surveillance to obtain informed consent from their employees before implementing a monitoring program to avoid any legal liability (such consent can take the form of a signed acknowledgement that the employee has received and read an employee manual that contains the company's surveillance policy).

(Vanessa Fazio is an LL.M. student at Suffolk University Law School and a former CMLP Legal Intern. We greatly appreciate all of her hard work and wish her much luck in her legal career.)

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