Leslie A. Farber
Workers’ Privacy Rights in the Digital Age
Updated: Jul 3, 2019
What privacy rights can employees expect when using social media, email, and blogging?
Employees generally understand that while using work computers and other technology provided by their job, whether inside or out of the workplace, their activity (at least online) is likely to be monitored in order to ensure appropriate behavior and use of company time and property. This has been challenged by employees who feel their rights are being violated, yet the law has consistently upheld that employee activity on company computer systems usually is unprotected by personal privacy laws.
The more interesting question, then, involves what rights employees have when interacting or creating content in a digital space outside of the workplace. Does freedom of speech cover the right to post blogs on topics controversial in one’s work environment? Are posts on social media, however ill-conceived, grounds to fire or enact punitive measures against an employee? Are emails, which could be considered private conversations (an activity that traditionally receives some protection) still safe from an employer’s prying eyes?
As the digital environment changes and individuals are increasingly connected at all times, including to their coworkers and bosses, the law has needed to adapt to consider both the right of individuals to express themselves as well as employers’ ability to take necessary measures against employees who act in ways that they consider disruptive, destructive, or improprietous - online as well as off.
While the current state of the law relating to employees’ rights to privacy and free speech is certainly still lingering in a gray area, several recent cases that relate to specific forms of online activity are beginning to delineate the digital battle of wills between employee and employer.
The American court system appears to have taken a side when it comes to workplace emails, and the verdict is not favorable for employees.
Thus far, the law has usually sided with employers when it comes to questions of work email privacy and monitoring of activity during the workday, at least pertaining to emails sent through work computer systems. Emails generally are considered the property of employers, particularly when sent through work computer systems; whether or not employers explicitly warn employees that their correspondence has been monitored, employees can be subject to termination if they use email inappropriately. However, at least one New Jersey court has ruled that emails an employee sent to her attorney using her personal non-employer email account on a company computer are “privileged” and entitled to privacy.
Only in instances where employees are promised privacy, or given “confidential” or password-protected permissions, can they reasonably expect their correspondence to remain private. But even here, a right to privacy is questionable.
What’s more, over half of the respondents to a poll asking companies if they monitor employees’ emails confirmed that they do, in fact, use measures such as keylogging and pulling employees’ password information to watch their employees’ interactions through work emails. Personal email is also increasingly monitored, when accessed through workplace devices.
When used on a work computer or mobile device lent out by a workplace, employers generally, as with email, have the right to monitor what their employees are doing on social networking sites. This can include instant messages, social media site visits, and posts made during work hours.
The more complicated question posed to the courts has rather become that of what constitutes employees’ rights to free speech and expression on social media used in “private,” especially that which involves comments on or critiques of their workplace.
In just one such well-publicized instance, an employee at a homeless shelter was let go for calling an overnight shift she worked “spooky” and commenting on the mental health of residents. Office of the General Counsel for the National Labor Relations Board concluded that “the employer did not unlawfully discharge the Charging Party because she was not engaged in protected concerted activity” - in other words, acting indecorously, ignoring confidentiality concerns, and acting against the interests of the organization.
Can opinions that do not directly concern one’s workplace still be subject to employers’ judgements? In the case of private employers, the same logic applies to free speech online as it does in other forms: while we are constitutionally guaranteed protection from the government for our voiced opinions, few such restrictions apply to private organizations. The only exceptions so far have been for union activities and political messages, though these are on a state-by state basis.
Blogging has thus far been viewed similarly to Facebook, Twitter, or other social media posts in the eyes of the courts - generally speaking, private employers have been given the right to monitor blogs as they do social networks, and react accordingly to those which it finds to in some way inappropriate.
However, if you keep a blog and are reluctant to put a pause on this form of expression, you may be in luck - several laws may protect employees who keep their own blogs, given they avoid topics such as negative commentary on their workplace or coworkers, or other inappropriate or indecent topics (which vary by employer). As with Facebook posts, protections are afforded for those who choose to express political views and discuss or arrange “concerted activity,” e.g. labor union activity. In addition, bloggers have seen legal protection when “whistleblogging,” or posting about safety hazards or concerns in a workplace, as well as writing about discrimination in the workplace (protected by various labor laws that shield employees from retaliation for voicing concerns about a violation of their rights). In addition, certain states also protect bloggers simply by virtue of their pursuing the activity off-site, and outside of business hours.
Are you questioning the validity of a termination based on your online activity? Do you suspect an employer of unlawfully monitoring and/or discriminating against you for posting information that you believe may fall under a protected category? If so, contact the Law Office of Leslie A. Farber for a full assessment of your rights, both online and off.
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