Workplace monitoring is subject to a variety of laws regarding when employees have a right to privacy and if and when they must be notified that they are being monitored.
The Electronic Communications Privacy Act (“ECPA”) of 1986 governs an employer’s monitoring of employees’ electronic communications in the workplace. The ECPA prohibits an employer from intentionally intercepting its employees’ oral, wire and electronic communications. However, the ECPA contains several exceptions to this prohibition.
The business purpose exception permits employers to monitor oral and electronic communications as long as the company can show a legitimate business purpose for doing so. With a legitimate business reason, monitoring must be related to an employee’s work or the business itself and employers may not monitor an employee’s personal communications. The consent exception allows employers to monitor employee communications provided that they have their employees’ consent to do so.
An employer’s liability for monitoring activities may be limited depending on how “electronic communications” is defined. The ECPA only includes transmission and not storage of electronic communications. Thus, monitoring transmissions is permissible, including the reading of emails after they are sent. However, monitoring stored communications is not allowed by employers.
Under the ECPA, employers permissibly monitoring employees’ telephone conversations should cease from doing so once realized that the nature of the phone conversation is personal. In addition, it is illegal for employers to intercept stored voice messages as well as live telephone calls. In the ordinary course of business, however, employers may legally monitor their employees’ oral telephone calls. Examples of when the “ordinary course of business” exception applies includes the quality control of telemarketing and customer service operations.
Additionally, companies that wish to protect trade secrets or enforce noncompete agreements may also monitor telephone communications. Nevertheless, in all cases where the employer is “listening in” on its employee’s communications, it is recommended that written consent be obtained in advance.
New York Digital Workplace Monitoring Law – Effective May 7, 2022
Under the New York Digital Workplace Monitoring Law, employers that monitor or intercept employee emails, internet usage, or telephone communications must provide written notice to those employees. The law requires prior written notice upon hiring and once annually to all employees, informing them of the types of electronic monitoring which may occur.
This law applies to employers who monitor phone calls, email communications, and internet access or usage by an employee by any electronic device or system. Employers must provide written notice (electronic or paper form) to existing employees. In addition, for all new hires, employers must include written notice as part of the onboarding/new hire process. Further, a written acknowledgement of monitoring activities must be obtained by ongoing employees and new hires. Additionally, notice of the monitoring activities must be posted in a conspicuous place at the workplace where it may be readily viewed by employees who are subject to monitoring.
The written notice must communicate: that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system” may be subject to monitoring “at any and all times by any lawful means” which includes “computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems.”
Notice is not required for processes that are designed to manage the type or volume of incoming/outgoing e-mail, voicemail, or internet usage; that are not targeted to monitor or intercept the e-mail, voicemail, or internet usage of a particular individual; or that are performed solely for computer system maintenance and/or protection.
Key Takeaways:
New York employers who currently and/or plan to conduct electronic monitoring of employees must provide: (1) an acknowledgement form to new employees upon hire; as well as (2) notice of the electronic monitoring policy to existing employees. Employers should also incorporate the required notice in their new-hire and onboarding systems for new hires. Employers that address electronic monitoring in existing policies may also wish to review the existing policies to ensure that the information in those policies is consistent with the nature of the notification required by the law and update existing policies if warranted.
For their best protection, employers should establish and disseminate to employees a clear written policy regarding the monitoring of employee emails, internet use, telephone calls and company-owned vehicles. Beyond what the law requires, employers should keep in mind that communicating monitoring policies clearly will help manage employee’s expectations in terms of privacy in the workplace.