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Privacy Rights When Working From Home

Updated on
February 25, 2021
Article written by
Attorney Kevin O'Flaherty

This article will discuss employee privacy rights when working from home. We will answer the following questions:

 

  • Do employees have any privacy rights when working from home?
  • How much can an employer monitor your work-from-home activities?
  • Do workers have the right to know what their employer monitors?
  • Can my employer monitor my activity on my personal device?

 

At-home workers' privacy rights have been thrust into the spotlight, poised for dissection and review, by the worldwide transition to remote work. Covid-19 is creating a legal vortex into which antiquated workplace policies get churned up and spit out as new work-from-home guidelines. Workers may not be aware of how far their employer's monitoring capabilities extend. Employees need to understand their privacy rights, which may require them to ask their employer uncomfortable questions. Regardless of your company's written privacy policy, the law gives employers considerable leeway to monitor their employees.

 

Do Employees Have Any Privacy Rights When Working From Home?

 

Employee privacy rights at home are limited because they are essentially the same as their privacy rights while in the office. Short of setting up a camera in your home, employers have the right to monitor any use of employer-provider equipment, including emails, files you create, send, and receive, networks and websites you access—every single keystroke.

 

What little privacy exists is found in using personal email—but not if you access your personal email on company equipment or through a company system. Even before Covid-19 forced many companies to move their employees to remote work en masse, employers were disciplining employees for using social media sites and other programs thought to be "personal."

 

How Much Can An Employer Monitor Your Work-From-Home Activities?

 

If you're an employee and you're concerned about what your employer might see or you just don't fully understand your employer's level of monitoring, assume the only thing they can't monitor is what you do on your personal computer when not connected to their system.

 

There are a few exceptions, such as reading messages related to genetic information or union business. A court may argue that it is legal for an employer to record a phone call by an employee if it is used on a company cell phone, but that would be unusual unless it's a reasonably known company policy.

 

Employer recording of video conferencing, such as Zoom calls, is legal if the account or equipment is company property or the call is between an employee and a client. Employees should be especially mindful of what they are doing while on a video conference. 

 

A majority of states have laws against employers demanding employees' social media passwords. Many states also require that employers disclose to employees their email monitoring policy. Monitoring select employees based on race, gender, age, and other demographics is considered a civil rights violation.

 

Do Workers Have The Right to Know What Their Employer Monitors?

 

Each state has its own set of laws describing how and how much an employer must disclose about employee monitoring. Most companies choose to be transparent because it fosters a positive relationship between employer and employee. However, many employers aren't required to make employee monitoring information available unless requested. Even then, what an employer tells an employee may not be legally enforceable should the employee attempt to sue for violation of privacy. An employee may decide they want to use only their personal equipment for business, but it is within a company's right to require all work be done through company equipment and systems. Often, employees have no choice but to sign their consent if they want to maintain employment.

 

Can My Employer Monitor My Activity On My Personal Device?

 

An employer can't monitor your activity while on personal equipment unless the activity utilizes or interacts with some portion of the company. For example, you use your personal computer to access and conduct business through company email. Another less obvious and debatable example would be that you use a personal phone to send a text message to a client or another employee; in this example, the content of the message may determine your company's access. Bottom line, if you are using the employer's hardware, email, or software system, they can monitor you.

 

If you have any questions about employer and employee rights, give us a call at (630) 324-6666 or contact us online to learn more.


Privacy Rights When Working From Home
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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