Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Ogletree Deakins
Employees of private employers have limited privacy rights at work. Employers generally have the right to review and monitor employees’ work spaces, computers, email and internet use, and phones. Employers should be mindful not to restrict employees’ privacy in a manner that would violate the National Labor Relations Act.
Although the Arizona Constitution provides a right to privacy, courts have interpreted this right to apply only to public employers (Ariz. Const. Art. II, § 8).
It is a crime in Arizona to knowingly photograph, videotape, film, record, or secretly view another person without their consent in certain places, including restrooms and locker rooms (A.R.S. § 13-3019).
Holland & Hart LLP
No Colorado law specifically addresses the monitoring of employees or employee communications. Employer policies should specify that employees should have no expectation of privacy in any information or items brought onto the employer’s premises or contained on or accessed through the employer’s computer systems or devices.
Colorado requires the consent of one party to a conversation before recording telephone conversations or other wire communications (C.R.S. §18-9-304).
Littler Mendelson PC
D.C. does not prohibit employers from investigating or monitoring current employees or employee use of company-owned devices and networks.
Phelps Dunbar LLP
The Florida Constitution expressly recognizes a right to privacy that is broader than the federal Constitution; however, it is limited to government action and applies to public-sector employment only. Additionally, Florida courts recognize three separate invasion of privacy claims:
- public disclosure of private facts;
- appropriation of a name or likeness; and
- intrusion on solitude or seclusion.
Monitoring employees in Florida creates invasion of privacy considerations and requires employers to balance employees’ privacy interests with the need for monitoring. Florida has also implemented a wiretap statute that prohibits the interception of any private wire, oral, or electronic communication when none of the parties to the communication have consented to the interception.
Littler Mendelson PC
Employers may not engage in activity that constitutes a state law tort—for example, tortious invasion of privacy, infliction of emotional distress, or defamation. Importantly, an employer may reduce the likelihood of a successful tort claim by an employee by providing its employees with prior notice regarding the monitoring at issue.
ES&A
The Hawaii State Constitution recognizes that each individual has a right to privacy. However, the case law on whether this right extends to employment situations in the private sector is still developing.
Privacy statutes are limited to protecting personal identifying information (e.g., social security numbers, financial accounts, and personal identification numbers) and medical information. Nevertheless, state courts will entertain common law causes of action for invasion of privacy and disclosure of private facts.
Jackson Lewis PC
The Consumer Fraud and Deceptive Practices Act prohibits:
- an employer from publicly disclosing an employee’s social security number;
- printing the number on an employee card;
- requiring the employee to transmit the number online;
- requiring an employee to use the number to access a website;
- printing the number on any materials mailed to the employee unless required by law; or
- encoding the number on a card or document.
Ogletree Deakins
Indiana’s employees have limited rights with regard to privacy and monitoring in the workplace.
The Indiana Wiretap Act protects employees by prohibiting employers from intercepting, disclosing, or using employees’ computer or telephone communications without the consent of at least one party to such communications.
Indiana employees may also sue employers for invasion of privacy under the theories of intrusion on seclusion, public disclosure of private facts, “false light,” and misappropriation of name and likeness. However, invasion-of-privacy torts in the employment context have been construed narrowly.
Phelps Dunbar LLP
The Louisiana Constitution contains an explicit prohibition against invasion of privacy, which provides a cause of action for public employees, but not private employees. However, the Louisiana Civil Code provides for a private right of action for invasion of privacy which applies to private employees. A private employee’s right to privacy can be lost by consent, waivers, or certain actions that prevent its assertion. A public employee’s expectation of privacy can be reduced by an employer’s practices and procedures. Employers have an interest and duty to investigate employee misconduct, as long as the investigation is in good faith and on reasonable grounds. An employer may record an employee’s conversation if it is a party to the conversation, the employee consents, or the call is made in the ordinary course of business. Employers may monitor employee emails sent to the workplace. Surveillance of employees is permitted if employees consent or all employees are subject to surveillance.
Morgan, Brown & Joy LLP
Massachusetts’ general privacy law is applicable to employees (Mass. Gen. Law Ch. 214, § 1B). Chapter 272, Section 99 applies to the interception of wire and oral communications and requires that all parties consent to the recording of the communication (Mass. Gen. Law Ch. 272, § 99(B)(4)).
Massachusetts’ general criminal background checks are authorized by Mass. Gen. Law Ch. 151B, §§ 4(9) and 4 (9 ½), as well as Mass Gen. Laws Ch. 6 §§ 171A and 172.
The Massachusetts Consumer Credit Reporting Act (Mass Gen. Law Ch. 93 §§ 50-68) provides that employees and prospective employees must be provided with advance written notice that the employer will request their credit reports. If the employer terminates or denies employment as a result of the credit report, notice must be given to the employee (or applicant) within 10 business days (Mass. Gen. Law Ch. 93 § 62).
It is unlawful for an employer to require or administer a lie detector test as a condition of employment and such language must be included on all applications for employment in clearly legible print (Mass. Gen. Law Ch. 149 §19B(2)(b)).
Pre-employment medical examinations must be:
- be limited to determining a prospective employee’s capability to perform the essential functions of the job with reasonable accommodations;
- be administered to all prospective employees entering the same job category; and
- be reimbursed by the employer.
In addition, the employer must provide a copy of the medical report on the applicant’s request (Mass. Gen. Law Ch. 149 §§ 19A and 159B).
Employer cannot require HIV antibody or antigen tests as a condition of employment (Mass. Gen. Law Ch. 111, § 70F), and cannot use genetic information in employment decisions (Mass. Gen. Law Ch. 151B, §4(19)). Employers cannot ask job applicants about voluntary or involuntary admission to a mental healthcare facility (Mass. Gen. Law Ch. 151B, §4(9A)).
Jackson Lewis PC
Generally, employers have the right to monitor employees at work with respect to usage of computers, email, internet, phones and work spaces, so long as appropriate notices of consent are issued to employees and the employer has a clear monitoring policy. Employers should be aware that email and telephone monitoring of employees is subject to the Minnesota Privacy of Communications Act (Minn. Stat. §§ 626A.01-.42).
Video surveillance without audio is permitted, so long as the surveillance does not occur in areas where an employee might be undressed (Minn. Stat. § 609.746).
Minnesota courts recognize three of the four common law torts for invasion of privacy:
- intrusion on seclusion;
- appropriation of name or likeness; and
- public disclosure of private facts (Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)).
Phelps Dunbar LLP
Mississippi has no statute recognizing an employee’s general right to privacy in the workplace, and no general law prohibits electronic monitoring of private employees. However, Mississippi law does expressly prohibit the secret recording of communications when none of the individuals involved are aware of the recording. The statute does not apply to a communication intercepted by an individual who is a party to the communication (Miss. Code Ann. § 41-29-531(e)).
Holland & Hart LLP
Montana’s Constitution contains a protective right of personal privacy (1972 Montana Constitution, Article II, Sections 10-11).
By statute, Montana protects privacy in communications by making it an offense to knowingly or purposely record a conversation, or intercept or monitor electronic communications without the permission or acknowledgment of all parties to the communication. If a warning that a conversation may be transcribed or recorded is provided, either party may record it (45-8-213, MCA).
Because of Montana’s strong constitutional right of privacy, employers should inform employees by way of written policies of the employer’s intent to conduct surveillance, monitoring, or searches at their discretion.
Holland & Hart LLP
Nevada law on privacy in the employment context is not well developed. However, Nevada courts have given private employers wide latitude in monitoring thier workplace and facilities, especially where employer policies provide for such monitoring (common sense must be followed with respect to areas where privacy can legitimately be expected – e.g., restrooms and changing rooms).
Nevada law requires two-party consent before recording telephone conversations or other wire communications, but only one-party consent is required for recording “in-person” conversations (Nev. Rev. Stat. §§200.620; 200.650).
Cook Little Rosenblatt & Manson pllc
Like most states, New Hampshire has a statute regulating wiretapping and eavesdropping (RSA Ch. 570-A) which prohibits the recording or interception of any telecommunication or oral communication unless otherwise allowed under the statute. Unlike certain other states’ wiretap statutes, New Hampshire law requires the consent of all parties to the communication in order for the recording or interception to be legal (provided that it does not meet one of the exceptions set forth in the statute).
DLA Piper LLP
Generally, an employer may implement soundless video recording, although legislation is pending which would require that written notice be given to employees (N.Y. Assembly Bill A. 3871). Absent a court order, New York prohibits employers from video recording an employee in a restroom, locker room or other room designated for purposes of changing clothes (N.Y. Labor Law § 203-c). It is an unfair labor practice for an employer to “spy upon or keep under surveillance, whether directly or through agents,” employees or representatives engaging in concerted activities (N.Y. Labor Law § 704-a).
With respect to audio recordings, New York’s wire-tapping law, like federal law, requires one party’s consent. It is a crime to record or eavesdrop on in-person or telephonic conversations without the consent of at least one party to the communication (N.Y. Penal Law §§ 250.00, 250.05).
Poyner Spruill LLP
North Carolina law does not provide employees with a specific right to privacy in the employment context. While there is no statute addressing employees’ right to privacy, an employee could make a successful common law claim for invasion of privacy or intentional infliction of emotional distress in extreme (and rare) circumstances.
With respect to monitoring, North Carolina follows the “One-Party Consent Rule” (N.C. Gen. Stat. § 15A-287), which provides that employee communications—both oral and electronic—may be intercepted (monitored or recorded) when one party to that communication consents to the interception or when the nature and circumstances of the communication do not give rise to an expectation of privacy.
Consent may be obtained by prior warning that an employee’s communications may be monitored. Employees may be warned in their employment contract, a public posting, or any other means reasonably calculated to notify them that their conversations and communications may be monitored. For instance, in North Carolina v. Price, 170 N.C. App. 57, 66 (2005), the North Carolina Court of Appeals affirmed the trial court’s finding that an employer’s telephone surveillance was proper because the parties knew “that the call was subject to monitoring and recording and that they consented, at least impliedly, by continuing with the conversation in the face of that warning”.
Frost Brown Todd LLC
Ohio private sector employees have little or no expectation of privacy in the workplace regarding their use of the employer’s computers, communication devices, and voicemail system. It is recommended that employees receive written notification of that lack of any expectation of privacy. Ohio is a one-party consent state for purposes of audio recording.
Cozen O'Connor
The legality of a workplace search in Pennsylvania is analyzed under common law tort principles. Employees in Pennsylvania have a right to be free from searches that constitute an unreasonable intrusion into their seclusion, but Pennsylvania courts have generally allowed employers to conduct reasonable workplace surveillance. Employers’ ability to monitor employees’ communications is limited by the Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 Pa. Cons. Stat. §§ 5701 to 5782), which generally prohibits employers (and others) from intercepting or attempting to intercept wire, electronic, and oral communications (including telephone calls), and from using or disclosing (or attempting to use or disclose) the contents of a non-consensual, intentionally intercepted communication.
Bass, Berry & Sims PLC
Under Tennessee’s Employee Online Privacy Act of 2014, employers are prohibited from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:
- add the employer to their list of contacts associated with personal internet accounts; or
- permit the employer to observe their restricted online content after they have accessed an online account.
However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes.
Employees are also protected under the Wiretapping and Electronic Surveillance Act, unless the person is party to the communication.
Ogletree Deakins
There are no statutory rights. Common law claims for invasion of privacy and related torts may arise in some circumstances. A properly worded policy can help prevent and/or defend such a claim.
Holland & Hart LLP
Utah law mirrors the federal Electronic Communications Privacy Act. Monitoring phone calls, video or audio recordings requires on-party consent (Utah Code §77-23a-1 et seq.).
Quarles & Brady LLP
Wisconsin has a general statute prohibiting invasion of privacy. In the employment context, an invasion of privacy claim could potentially arise if an employer gives publicity to the private life of an employee, but only if the disclosure would be highly offensive to a reasonable person. While no Wisconsin laws specifically address the monitoring of employees in the workplace, it is unlawful for employers to compel applicants or employees to provide access to their personal protected social media accounts.
Holland & Hart LLP
Wyoming law on privacy is not well developed. The Wyoming Supreme Court has ruled that an employee cannot sustain an invasion of privacy claim against his or her employer based on the employer’s comments related to the manner and reasons for discharging the employee (Jewell v. North Big Horn Hosp. Dist., 953 P.2d 135 (Wyo. 1998)).
Intercepting any oral, wire, or electronic communication is unlawful, except when the person intercepting is a party to the communication or when one of the parties has given prior consent (Wyo. Stat. §7-3-702(a)(i)).
Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
Ogletree Deakins
As of 2015, no Arizona law restricts an Arizona employer’s ability to review potential employees’ social media information. However, employers should be mindful not to restrict employees’ social media in a manner that would violate employees’ Section 7 rights under the National Labor Relations Act.
Holland & Hart LLP
Colorado employers may not suggest, request, or require that an employee or applicant disclose any user name, password, or any other information that provides access to the individual’s personal accounts or personal electronic communications devices. Employers may not compel an employee or applicant to add anyone as a “friend” or to their list of contacts and may not require, request, suggest, or cause an employee or applicant to change their privacy settings associated with a social networking account. Finally, employers may not discharge, discipline, or discriminate against any employee or applicant for refusing or failing to disclose such information. A few exemptions exist related to conducting workplace investigations regarding compliance with applicable laws or the unauthorized downloading of the employer’s proprietary information (C.R.S. §8-2-127).
Littler Mendelson PC
No D.C. law prohibits employers from monitoring employees’ use of social media sites.
Phelps Dunbar LLP
Florida has no law relating to employers’ right to access social media. In 2013 a bill was proposed to make it unlawful for employers to compel applicants or employees to provide access to their protected personal social media accounts. The proposed bill died in committee and was not enacted.
Littler Mendelson PC
Georgia law contains no express provisions protecting social media passwords in the context of the employment relationship or limiting an employer’s use of information from social media accounts in making employment decisions.
ES&A
Not specifically. The Hawaii State Constitution recognizes a right to privacy, and there is a state law protecting personal information (HRS Chapter 487R). However, neither the State Constitution nor HRS Chapter 487R specifically address social media passwords or employer monitoring of social media accounts.
Jackson Lewis PC
The Illinois Right to Privacy in the Workplace Act allows employers to access employees’ professional social media accounts. However, the act generally prohibits employers from requesting that any employee or prospective employee provide a password or other account information to enable the employer to gain access to an employee’s personal social networking accounts.
Ogletree Deakins
Indiana has no state laws protecting social media passwords in the employment context. Nor does Indiana have state laws on employer monitoring of employee social media accounts.
Phelps Dunbar LLP
Louisiana recently passed a law which prohibits employers from discharging, refusing to hire, or otherwise penalizing an employee for failing to disclose credentials to his or her personal email or social media accounts.
Morgan, Brown & Joy LLP
As of June 23 2014, legislation (S.2118—a new draft of H170 and S852) is pending that will restrict an employer from requiring or suggesting that an employee or applicant disclose his or her username or password or provide access through his or her username or password to a personal social media account. It will further restrict an employer’s ability to list as a condition of employment that an employee add anyone (including the employer) to contacts associated with the social media account or take or threaten adverse action for refusing to disclose a username or password or add the employer as a contact.
Jackson Lewis PC
As of the end of 2015, no Minnesota law restricts an employer’s ability to monitor social media accounts for an applicant or employee. However, employers should be mindful not to restrict social media use by employees in such a way as to violate employees’ Section 7 rights under the National Labor Relations Act.
Phelps Dunbar LLP
No Mississippi laws protect social media passwords in the employment context or regulate employer monitoring of employee social media accounts.
Holland & Hart LLP
By statute (39-2-307, MCA), Montana prohibits an employer, or an employer's agent, from requiring or requesting an employee or job applicant to:
- disclose a username or password for the purpose of allowing the employer or employer's agent to access a personal social media account of the employee or job applicant;
- access personal social media in the presence of the employer or employer's agent; or
- divulge any personal social media or information contained on personal social media.
Exceptions apply when an investigation is underway and the information requested of the employee is necessary to make a factual determination, and when:
- the employer has specific information about employee activity that indicates work-related employee misconduct or criminal defamation, as provided in 45-8-212;
- the employer has specific information about the unauthorized transfer by the employee of the employer's proprietary information, confidential information, trade secrets, or financial data to a personal online account or personal online service; or
- an employer is required to ensure compliance with applicable federal laws or federal regulatory requirements or with the rules of self-regulatory organizations as defined in Section 3(a)(26) of the Securities and Exchange Act 1934 (15 U.S.C. 78c(a)(26)).
"Personal social media" is defined as a password-protected electronic service or account containing electronic content, including emails, videos, photographs, blogs, video blogs, podcasts, instant and text messages, internet website profiles or locations, and online services or accounts, including password-protected services or accounts to which an employee may post information, data, or pictures. The term does not include a social media account that is:
- opened for or provided by an educational institution and intended solely for educational purposes; or
- opened for or provided by an employer and intended solely for business-related purposes.
Holland & Hart LLP
Nevada employers may not directly or indirectly require, request, suggest, or cause any employee or applicant to disclose the user name, password, or any other information that provides access to the individual’s personal social media account. Employers also may not discharge, discipline, or discriminate against any employee or applicant for refusing or failing to disclose such information (Nev. Rev. Stat. §613.135).
Cook Little Rosenblatt & Manson pllc
Yes. Under a law passed in 2014, employers cannot:
- request or require applicants and employees to disclose login information to their personal social media and electronic accounts; or
- compel any applicant or employee to add anyone to his or her personal social media or electronic accounts or reduce the privacy settings on such accounts (RSA 275:74).
There are exceptions under the law to allow employers to:
- monitor employee use of the employer’s social media accounts and electronic systems;
- conduct certain workplace investigations;
- obtain access to accounts that were created by virtue of the employment relationship or that were paid or sponsored by the employer; and
- obtain information about an employee or applicant that is in the public domain.
The law applies to all employers.
DLA Piper LLP
Legislation regarding the privacy of employees’ and applicants’ social media accounts is pending (N.Y. Senate Assembly Bill S. 3927, N.Y. Assembly Bill A. 2891).
Poyner Spruill LLP
North Carolina does not restrict employers from requesting access or requiring access to employee or applicant social media accounts.
Frost Brown Todd LLC
No.
Cozen O'Connor
There is no law in Pennsylvania specifically addressing social media in the employment context.
Bass, Berry & Sims PLC
Yes. Tennessee’s Employee Online Privacy Act of 2014 prohibits an employer from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:
- add the employer to their list of contacts associated with personal internet accounts; or
- permit the employer to observe their restricted online content after they have accessed an online account.
However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes.
Apart from Tennessee’s Employee Online Privacy Act of 2014, no state rules governing an employer’s ability to monitor an employee’s social media account exist.
Ogletree Deakins
No.
Holland & Hart LLP
Utah’s Internet Employment Privacy Act (Utah Code §34-48-101 et seq.) prohibits employers, with limited exceptions, from requesting an employee or an applicant for employment to disclose a username and password, or password that allows access to the individual’s personal online account. It also prohibits employers from taking adverse action, failing to hire, or otherwise penalizing an employee or applicant for failure to disclose usernames or passwords for personal online accounts.
Exceptions under which an employer can request or require usernames or passwords include:
- when access to an electronic device or account provided by the employer is required;
- when disciplining or discharging an employee for transferring the employer’s proprietary or confidential data to an employee’s personal online account without authorization; and
- when conducting an investigation based on specific information about activity on the employee’s personal online account that may violate applicable laws or policies against work-related misconduct, or about an unauthorized transfer of the employer’s proprietary information to an employee’s personal online account.
Employers are not restricted from viewing, accessing, or using publicly available information. Employers are not prohibited from complying with a duty to screen employees and applicants before hiring or monitoring and retaining employee communications under applicable law.
The law provides for a private right of action, but caps damages at $500.
Quarles & Brady LLP
Yes. An employer may not ask an employee or applicant to “grant access to, allow observation of, or disclose information that allows access to or observation of the personal Internet account” of the applicant or employee. An employer also may not discharge or otherwise discriminate against any person for exercising the right to refuse such a request (Wis. Stat. § 995.55(2)). Aggrieved individuals may file a complaint with Wisconsin’s Equal Rights Division.
Holland & Hart LLP
There is no Wyoming law on the access or use of social media in the employment context.
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