10 New (And Legal) Ways Your Employer Is Spying On You
The right to privacy is fast vanishing.
Think you have the right to privacy at work? Think again. Here are 10 perfectly legal and new ways your employer may be spying on you:
- Internet usage monitoring: Okay, maybe a worker searching for "pressure cooker bomb" might justifiably set off some alarm bells, as it did like for one employer who notified authorities. But searching terms such as, "pork," "cloud," "team" and "Mexico" can generate Homeland Security's interest, so if you spend time at work checking out whether there are storm clouds on the way for your visit to Mexico to see your favorite soccer team and eat pork rinds, you may be in trouble. Your employer is almost certainly monitoring your internet usage. Even if you don't care about Mexican pork rinds, if you're booking airline tickets, tweeting, checking out your ex-spouse's relationship status on Facebook or, god forbid, checking out porn sites, your employer will know about it. Read, understand and don't violate your company internet usage policy. Don't end up being disciplined for your internet usage.
- GPS: While your employer might not go as far as attaching a device to your personal vehicle, many company vehicles are equipped with GPS. If you don't go right to the customer's house, and instead stop at the flashing donut sign for a quick snack, your employer may know about it. Make an unscheduled, unapproved stop for gas? Duck into a rest stop to avoid a nasty thunderstorm? Better make sure you supervisor knows about it, or you could be fired. 3.
- Keylogging: A keylogging program records every keystroke you use on your computer. Employers who use keyloggers see everything you type, including your passwords. The Stored Communication Act and Federal Wiretap Act, along with some state laws may offer limited protection, but so far most employers are getting away with this intrusive practice.
- Email monitoring: Your company probably has a written policy, something in your employment agreement, or some paper you signed when you started saying the company can monitor your email. This doesn't only apply to your work emails. Your company may well look at your personal emails sent on company computers and devices, even if you used your personal email address. While there is a law, The Electronic Communications Privacy Act, that limits email monitoring, it's pretty weak. Employers can sneak consent forms into handbooks, applications and contracts in order to circumvent your right to privacy. Looking for another job? Contacting an employment lawyer about discrimination at work? Sending confidential information to your personal email? Assume your employer will read what you sent and be sensible about email at work.
- Social media: The trend of employers demanding social media passwords to monitor employee and potential employee activity continues, although the horrible publicity this intrusive practice got has slowed the employer bandwagon. California, Washington, Maryland, Arkansas, Colorado, Nevada, New Mexico, Oregon, Utah, Vermont, Delaware, Michigan, New Jersey and Illinois have banned this practice, but it's fair game in other states. Legislation is pending or has been passed in 36 states in 2013. While demanding passwords is quickly being made illegal, your employer can still check out your social media activity. Some companies have an overbroad social media policy that says you aren't allowed to discuss or disparage the company in social media. This may violate your right to complain about working conditions with coworkers. If corporate snooping reveals that you have a disability, pregnancy, genetic condition or other protected information, you may have a lawsuit against them if they fire you. Management-side lawyers continue to tout a parade of horribles to employers who don't monitor employee social media, so expect more monitoring in the future.
- Audio recording: There are limitations on taping conversations that vary by state. In 12 states, everyone in the conversation must consent. In others, only one party need consent to being taped. However, employers may be allowed to tape employee conversations even in all-party consent states. Federal wiretapping laws have exceptions for employers who obtain employee consent, which means you may have signed something saying you agree to being taped when they shoved that giant stack of papers in front of you on your first day, in your application, when you signed the form attached to your handbook, or in an employment agreement. Employers also are allowed to tape for legitimate business purposes such as customer service, under very strict conditions.
- Videotaping: Employers sometimes use videotaping to monitor employees. The wiretapping laws don't apply unless there's also audiotaping. I've heard of video cameras installed in offices, company vehicles, and locker rooms. Imagine driving a truck on a long haul and having to adjust your clothing. Smile! Someone is watching as you sort out your unmentionables. Some states have limitations, such as privacy laws, but in most places your employer can watch you. Employers may even videotape you while you're out of the office. In a recent case, an employer had an investigator tape an employee's off-duty activities while out on FMLA leave. Instead of punishing the employer for this extreme snoopery, the court tossed the employee's case.
- Off-duty conduct: Moonlighting? Unusual hobbies? Smoking? Social drinking? Your employer may or may not be able to monitor your off-duty activities and fire you if they don't like it. Some states limit employers' ability to fire you for certain legal off-duty conduct. Most allow you to be fired at-will, even for something you did outside of work.
- Medical records: In Arizona, there's a law allowing employers to inquire whether employee contraceptives are for medical reasons. While you do have some medical privacy at work, if you seek accommodations for a disability, ask for Family and Medical Leave, or make a worker's compensation claim, your employer may be entitled to your medical information. Employers can also demand doctor's notes under their sick policy, as long as they don't require the letter to include a diagnosis, disclose a medical condition, or apply the policy discriminatorily.
- Company devices: Almost every company device can be monitored. Copy machines, cell phones, vehicles, security entrances and computers can all tell the employer what you are up to. Copiers can store what you copied and tell the employer what time you made the copies. Text messages are not private. Your swipe card tells the employer when you came and went. Instant messages and chats can be recorded. If you're using a company device or are on company property, you can be monitored.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or in our upcoming live video chat.
Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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