Part 2: Four key areas of employee's right to privacy for small business owners
Editor's note: in Part 1 entitled: Privacy in the Workplace? What Employers Need to Know we covered an employees expectation of privacy.
I would like to comment further on an employee’s right to send personal emails from the workplace, and discuss whether, and to what extent, employers can monitor employees’ phone calls, and prohibit the recording of workplace conversations.
Four key areas of employee rights:
1. The Expectation of Privacy and the Employee’s Right to Transmit Emails Through Third Party Email Services
Employers can restrict an employee’s right to transmit personal emails over the employer’s server. By extension, an employer can also impose restrictions on employees’ email activities utilizing laptops and other devices supplied by the employer.
But, is the result different where an employee transmits emails using a third-party email service like google or yahoo?
The result here will depend on the precision of the employer’s written email policy.
In general, an employee has a greater expectation of privacy with respect to using a third- party email service, but, if the employee is admonished beforehand, pursuant to a written policy, that any personal email use, even including the transmission of emails via third party services, is prohibited, an employee’s expectation of privacy may be eliminated, enhancing the employer’s ability to regulate email activity.
2. Monitoring Phone Calls
Whether an employer can monitor its employees phone calls is highly dependent on state law.
In California, for example, state law requires that all parties to a monitored conversation expressly consent to being monitored.
In instances where monitoring crosses state lines, employers need to consult the Electronic Communications Privacy Act of 1986 (18 USC Section 2515, et. Seq.), which precludes the monitoring of an employee’s personal phone calls, but, even in the latter instance, if an employer has a clear policy of prohibiting employees from engaging in personal phone calls and the employees have expressly acknowledged the existence and enforceability of such policy, monitoring, nonetheless, may still be allowed.
Next page- #3 Recording Conversations and #4 Recording to obtain Evidence of Wrongdoing
About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website