Yes, Employees Do Have (Some) Privacy Rights

When it comes to privacy at work, employees really don’t have much. The protections available under federal and state law generally don’t apply in the private workplace. That’s in part because there are good reasons for companies to monitor work-related communications. For instance, customer service: you may want to make sure that customers are having quality phone experiences with your sales representatives. Or liability: reviewing employee emails may help you spot and address criminal activity or workplace bullying sooner rather than later.

Still, employers don’t have a free pass to listen in on any and every conversation at work. Here are some high-level guidelines for what is and isn’t allowed in Texas.

Invasion of Privacy Claims

When you listen in on employee phone calls, monitor their email, or search their workspace, you risk what’s called an “intrusion on seclusion” lawsuit. Basically, the employee could sue you for intruding on their private affairs if (1) you as the employer purposefully intruded, and (2) the intrusion would be ”highly offensive” to a reasonable person.

Obviously this isn’t the clearest guidance in the world. Whether or not the intrusion is offensive depends a lot on the context.

For a good business reason, you can probably:

• monitor work email on a work computer
• monitor work phone calls on a company phone

It’s less clear whether you can:

• monitor personal email on a work computer
• monitor work calls on a personal phone
• look at your employees’ social media accounts (from a liability standpoint, it’s much safer not to)

You definitely can’t:

• listen to personal calls on a work or personal phone (note: If you’re monitoring a company phone line to prevent personal calls at work, you need to stop listening right away once you know the call is personal.)
• monitor personal email on a personal computer

If you’re looking to do something in that middle, gray area, you should consult an attorney. And no matter what you’re looking to do, clearly communicate to your employees where they do and do not have an expectation of privacy — and then stick to that promise.

The Bottom Line

If the situation or conversation is clearly personal, and there’s no good business reason for you as the employer to know about it, give your team their privacy. 

On the other hand, if you have a good business reason for monitoring certain communications, and the average person would sort of expect the company to keep an eye on those communications, you’re probably good to listen in. 

No matter what, just make sure you let employees know up front that those communications may be monitored, preferably in a policy that is distributed and signed by everyone on your team. That — and limiting any monitoring activities to the bare minimum required to achieve your purpose — is your best defense against invasion of privacy law suits. Not to mention your better bet for a happy, healthy workplace. 

Stay tuned for another post on a tricky privacy issue: social media and hiring practices.