In the great American workplace, business and personal life converge.
If the hard-toiling employees at your start-up or small business had no private or social lives, you'd worry. Somewhere there's an employee who doesn't slack off, wouldn't think of using company time to play fantasy football or watch cats twerking on Vine, and never takes personal days to hit smoke-filled raves or Flat Earth Society meet-ups. When you find that person, don't just hire her. Clone her. (But wait—would you really want to work with her?)
Nobody likes a busybody boss. But when it comes to knowing what your employees are doing, as the big enchilada at a small business, you've got responsibilities. What are the privacy rights of workers on the clock? To what extent may the company monitor, listen in and snoop on, search or drug test staffers? How may the business control employees' after-hours activities? For your corner cube or office, here are a few wide-open tips on employee privacy.
1. Business before privacy
In exchange for the job and pay, when people go to work they forfeit a good deal of everyday privacy. Courts and legislatures trying to keep up with the fast-morphing modern workplace, balance employees' expectation of privacy at work against boss' legitimate business needs to monitor workers.
Pry into your state's privacy laws and prowl state labor departments for laws addressing employment privacy.
2. You're got more leeway than the government
Privacy principles in the Bill of Rights establish the ever-cherished American right to be left alone. These Constitutional privacy protections ensure against intrusive government action—not the workplace demands of private sector employers. While loyal workers may occasionally confuse their employer with a sovereign head of state, a small business boss is not the leader of the free world. Folks may expect to enjoy less privacy at the workplace then away from it. Just be sure to keep your policies out in the open.
3. Your property is your business
In the digital world, where private stuff gets jumbled together with work product, lines blur between personal and business. To complicate privacy, employees work from home or on the road with the company's laptops, smart phones and mobile devices; they also work on business-related correspondence, texts and documents using personal computers and devices. It's a digital mess.
Generally, the company's desks, files, lockers and cars belong to the business and may be subject to search by employers. Similarly, employees have no expectation of privacy in connection with data stored in or transmitted via computers, email accounts, phones and mobile devices that are owned by the employer.
4. You can listen in—as long as your workers know
Employees on the clock should not feel completely at home doing personal e-mail and phone calling. The workhorse Electronics Communications Privacy Act of 1986 (ECPA) prohibits interception of "any wire, oral or electronic communication," without consent. But the 27-year old act, currently on tap for updating and reform by Congress, includes a "business use" exemption that allows a company to monitor its phone and e-mail systems. The boss can listen in.
Under the ECPA employers may also ask employees to sign an agreement consenting in advance to the monitoring of their electronic communications. This is always smart policy. After all, companies have a legit business interest in making sure workers are not doing things like sending out unprofessional e-mails or mishandling customer, client or co-workers calls. Or, spending their days playing fantasy football.
Keep in mind some states have enacted laws similar to or more stringent than the ECPA.
So before you tape conversations, dial in to state laws on recording phone calls.
5. You're free to make the internet safe for work
Office employees have all the fun. There's no napping on the job, just a bit of downtime to shop online, troll blogs and eyeball NSFW web sites. What are employers worried about? Not just porn. Liability, decreased worker productivity, risks regarding confidentiality, proprietary information, business reputation and security, lots more—for starters. Employers may monitor the Web sites workers visit, and block and control the use of the Internet at work.
6. Passwords: don't go there
Workers don't just web surf, they socialize. Your employees come fully loaded with armies of Facebook friends and LinkedIn contacts, not to mention Instagram, Twitter and Tumblr accounts, Pinterest boards, and countless other social and mobile connections. Some companies would love to get employers' passwords. Not so fast. States protect employee digital privacy with new laws prohibiting employers from requiring employees to disclose their social media account usernames and passwords. Connect with a round-up of state laws on employer access to social media usernames and passwords, from the National Conference of State Legislatures.
7. Know the truth about lie detectors
Some workers are not Boy or Girl Scouts when it comes to truth telling. To keep things honest at work you may want to ask workers to take lie detector tests. The truth is, with a few exceptions, the Employee Polygraph Protection Act (EPPA), prohibits employers from doing just that. Here's the poster the DOJ requires employers display on the job to explain rights under the EPPA including penalties that apply for violation.
8. GPS and cameras OK—but no candids
Lots of work happens outside of offices. For legitimate business reasons during work hours, employers may use technology to follow workers with GPS tracking in phones and cars. Some states require consent.
If you install video cameras for security or other business purposes, don't hide the cameras and do notify employees that the premises are under surveillance. Even if your company is starring in a reality show, always keep cameras out of places like locker rooms and bathrooms.
9. Just say no drug privacy
Some workers imagine they would have better people skills if they worked with better people. Drugs don't help. Naturally, employers want a workplace free of substances that are illegal, don't mix with productivity, or both.
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Private employers, with certain exceptions, are not required to drug or alcohol test. Some states restrict when and how employers may drug test. Inhale your state's drug testing laws.
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Attitudes and laws about marijuana are relaxing. You may employ folks who smoke pot for medical or other reasons. Make sure your employee policies keep pace with the new rights.
10. After-hours is off limits
In America we have all kinds of employers and a workforce to match. Off-duty, employees let their hair down in a variety of ways. If your staffers sign anti-balloon release petitions, it's probably not your concern. Other employees might smoke cigarettes or enjoy other risky activities like riding motorcycles, shark fishing or dining on high cholesterol foods. Many states have enacted lifestyle discrimination laws to prohibit employers from controlling legal off-duty conduct of employees.
Remember that whatever you do, don't keep your privacy policy private. Some employees still confuse the workspace with their personal man cave, but make sure to give your rules a good airing:
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Create an employee handbook that includes your company's privacy rules and policies.
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Specify guidelines for personal employee e-mail, phone calls and voice mail, as well as use of the Internet and social media.
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Disclose company monitoring, drug testing, surveillance on or off business premises, and other privacy related practices and information. Get your employees' written consent to help avoid misunderstanding, misbehavior and worse.
If you play by the rules, you can make employee privacy law work for your growing business—without making your employees paranoid. As the discreet folks here at Rocket Lawyer know, secretly, your employees just want to keep the boss happy.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
