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Employee Expectation of Privacy

By:  Santiago J. Padilla, Esq.

Chances are if you find a news story today discussing any employment law issue, it will be on one topic: privacy. In particular, there has been a boom in interest in privacy concerns as they relate to new technology and social media. We use computers for everything these days, for conference calls with other offices, internal messaging systems, and company email accounts. Employer monitoring of these activities is common, and many employees may be unfamiliar of the rules, rights, and obligations as it relates to these issues.

As an initial matter, most of this employer monitoring of employee conduct using office services is allowed. However, that does not mean that employers can monitor you in every way imaginable while on duty or using company tools. It usually depends on the reasonable expectation of privacy. For example, locked office equipment, personal belongings, or quiet conversations with co-workers might come with different privacy expectations when compared to something like company email.

The first question that is always asked these days is generally related to internet and email usage. The basic rule is as follows: employers can usually monitor activity while on work computer systems. For example, employers can control internet usage entirely while in the office, from blocking sites to tracking where you search online at any given moment. Along the same lines, if you send an email using work email system, then you cannot expect those communications to remain private. One small caveat here, however, relates to employer's purposes. The employer must have clear business reasons for monitoring emails. As a practical matter though, virtually all employers can likely come up with some business reasons to keep an eye on these communications. The bottom line: Expect that your employers are viewing all emails. Never put anything in there that you would not want a co-worker or boss to read. Failure to abide by this rule is a common cause of employees being proven to have engaged in misconduct.

The same rules apply, in most cases, to offline communication. Employers can monitor work phone calls and even listen to voicemails in some cases. The best rule of thumb is to be cautious about all communication or work equipment or work time. Falling back on expectations of privacy during these times is a difficult prospect in subsequent litigation. That is not to say that employers have absolutely no limits; there actually has been legislation passed guiding the conduct.  Most notably, the Electronics Communications Privacy Act (ECPA) limits an employer's right to monitor telephone usage at work if the call is a personal one. Even then on a company phone, if the call is personal, the employer is not allowed to listen without consent.

Outside phones, emails, and the internet, when is employee privacy at issue?

In most cases, employers are allowed to monitor calls with clients or customers in order to maintain quality control. However, federal law, which regulates phone calls with persons from one state to another, does allow unannounced monitoring of business-related calls. See 18 U.S.C. Section 2510, et. seq. (the Electronic Communications Privacy Act).

In addition, under federal law, if the employer knows or has reason to know that the phone call is a personal call, the employer must immediately cease monitoring the phone call. See Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983). Yet, when employees are specifically instructed not to make personal calls from company telephones, then the employees take the risk that the calls on those phones may be monitored.

Drug testing as a privacy issue.

Finally, while most don't immediately consider drug testing to fall under the rubric of privacy, it does. Many employers require employees to undergo drug testing, and it is reasonable to ask if there are limits on what an employer can demand an employee to do. In general, Florida law allows employers to drug test employees if the position is "safety sensitive" or a "special risk" is present. Yet, without reasonable suspicion, the testing cannot be demanded of a specific employee. Instead, a random and private process for the testing must be in place. Alleged violations of this conduct is very fact specific, so it is important to receive tailored legal help.

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If you have any questions regarding these privacy issues or employment law matters, contact Santiago J. Padilla, Esq. as soon as possible. Based in Miami, Florida, we represent employers and employees throughout South Florida in employment cases. To set up an initial consultation, you can call us at 1-800-483-7197.

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