Employee Privacy and Monitoring

The Electronic Communications Privacy Act prohibits the intentional interception of oral or wire or electronic communications. This is the primary federal barrier to unrestricted monitoring. However there are two critical exceptions which are the business purpose exception and the consent exception.

We litigate the scope of these exceptions. The business purpose exception allows employers to monitor calls or messages to the extent necessary for business operations but it requires the monitoring to cease once the communication is determined to be personal. We advise employers on how to structure their monitoring to stay within this safe harbor. We argue that indiscriminate recording of all employee conversations including breaks and personal calls violates the statute because it exceeds the legitimate business purpose.

State laws often provide broader protections than federal law. States like California and Delaware and Connecticut require employers to provide written notice to employees before any electronic monitoring occurs. Failure to provide this notice can lead to significant statutory penalties.

We specialize in multi-state compliance. For national employers a uniform policy is dangerous. We tailor policies to meet the strictest standards of the operating jurisdictions. We also defend against common law tort claims such as intrusion upon seclusion. To win this claim a plaintiff must prove that the intrusion would be highly offensive to a reasonable person. We litigate what constitutes highly offensive conduct by arguing that installing a camera in a locker room is offensive while reviewing productivity logs is standard management.

Keystroke loggers record every button pressed. This includes passwords and personal emails and confidential health information entered into HR portals.

We defend against claims that this constitutes an invasion of privacy. We draft clear disclosures informing employees that any activity on a company device is subject to review. 

For employees we challenge the use of these tools when they are deployed on personal devices. We argue that an employer has no right to install deep surveillance software on a personal laptop simply because it is used for work. We seek to suppress evidence obtained through such overreach in employment disputes.

Video surveillance is generally permitted in open work areas but audio surveillance is restricted by state wiretap laws. Many states require two-party consent to record audio meaning both the employer and the employee must agree.

We audit security camera systems to ensure audio recording is disabled unless specific consent is obtained. We litigate cases where hidden microphones were used to spy on union organizing meetings or private conversations. We argue that while an employer can watch what happens on the factory floor they cannot listen in on the break room without violating the federal wiretap act and state privacy statutes.

Several states have lawful off duty conduct statutes that prohibit employers from disciplining employees for legal activities engaged in outside of work. Continuous GPS tracking can reveal participation in these protected activities.

We defend employees who have been fired based on data gathered from off duty tracking. We argue that the surveillance of the employer into the private life of the employee was an unlawful invasion of privacy. For employers we implement geofencing policies that automatically disable tracking when the employee clocks out or when the vehicle enters a privacy zone like a home address.

Bring Your Own Device policies often require the installation of Mobile Device Management software. This software allows the employer to wipe the phone remotely or track its location.

We draft policies that clearly define the rights of both parties. We ensure that the employer disclaims the right to access personal photos or contacts or text messages. We advise on the segregation of data. We argue that the right of the employer to secure corporate data does not grant them a general warrant to search the entire personal digital life of the employee.

Under statutes like BIPA private entities must inform individuals in writing that biometric data is being collected and stored. They must state the specific purpose and length of time for which it is being collected and obtain a written release.

We audit timekeeping systems to ensure compliance. We argue that procedural violations where no actual data was compromised should not result in astronomical damages. We challenge the standing of plaintiffs who have suffered no concrete harm. We also advise on the retention and destruction schedules for biometric data to prevent future liability.

While HIPAA generally applies to healthcare providers the Americans with Disabilities Act imposes strict confidentiality requirements on all employers regarding employee medical information.

We advise on the handling of health data collected through wellness programs. We ensure that this information is kept separate from the general personnel file. We defend against claims that an employer improperly disclosed a medical condition or used health data to discriminate in promotion or termination decisions. We maintain the firewall between employee health status and employment decisions.

Physical searches of the workspace are governed by the reasonable expectation of privacy. If an employee has a personal lock on a drawer and the employer has never requested a key the employee may have a valid privacy claim.

We draft policies that explicitly state that desks and lockers and vehicles on company property are subject to search at any time. This destroys the expectation of privacy. Without such a policy we argue on behalf of employees that the warrantless search of their personal belongings was a violation of their Fourth Amendment rights in the public sector or a common law invasion of privacy in the private sector.

A critical issue in monitoring is the interception of attorney client communications. If an employee emails their personal lawyer from a work account does the privilege survive?

Courts are split on this issue. We advise employers to implement litigation hold filters that prevent the review of emails sent to known legal counsel domains. For employees we argue that the attorney client privilege is absolute and cannot be waived simply by using a work computer especially if the monitoring policy of the employer was vague or unenforced. We fight to protect the confidentiality of the legal strategy of the employee.