Employer Rights to Electronic Monitoring in the Workspace in Massachusetts
Do employers in Massachusetts have the right to monitor your workspace activity? Yes, they do, as long as the activity they monitor has something to do with the business of the employer. The only exceptions are when specific privacy rights are included in an employment contract or agreement you have signed. In practice, your employer can in most cases monitor just about everything you do while at work. What they can monitor is discussed in more detail below.
The main forms of monitoring that may be practiced by your employer include:
- cell phone use (when cell phones belong to or are provided by the employer);
- computers and workstations;
- emails and instant messaging;
- GPS tracking if using company vehicles;
- landline use;
- postal mail;
- security cameras;
- use of social media.
Employers are generally able to tape audio conversations in the workspace as long as the reason to do so has a business purpose. In most cases, employers would find it relatively easy to defend the use of audiotaping, whether it is done secretly or done in the open with the knowledge of the employee. The few exceptions might include locker rooms and bathrooms where employees would be expected to enjoy privacy.
Cell phone use
Employers cannot monitor your own personal use of your own cell phone, with the proviso that there may be restrictions on cell phone use at work which you agreed to in an employment contract. The use of audiotaping, for example, as mentioned above, may legitimately monitor excessive or prohibited use of your own cell phone.
Employers can monitor all use of cell phones which belong to them and have been provided for your use at work. This includes who you have called, who has called you, messages, shared images and videos.
Computers and workstations
As computers and workstations in a workplace are typically the property of the employer, they have the right to monitor all activity on them. This may include being able to see what you have on your screen at any time, what files you have stored, how long you have been active on a computer, how long you haven’t been actively using your computer (assuming that your job is mainly computer based). All of this may be common knowledge and notified to all employees as part of their employment agreement or it could all be done secretly.
Emails and instant messaging
All emails and messages sent on employer owned equipment can be legally monitored. This includes emails and messages sent on the company’s internal network or to another individual or organization outside of the network.
If you use a vehicle owned by your employer, whether this is on work related business or if you have been given permission to use it out of work, then your employer has the right to use an installed GPS tracker to know where you are in the vehicle, and your movements. Even if you are using your employer’s vehicle for personal purposes by agreement, your employer could argue that the tracking device can be monitored to protect the vehicle they own from potential misuse or theft.
Landline phone use
In most cases, if you use a landline at work it will belong to your employer and therefore use of it will be restricted. Your employer will have the right to monitor any phone calls made or received as long as they are business related. Theoretically, if your employer knows that a call is private then they should not monitor those calls. However, this does depend on company policy so if your agreement or instructions from your employer specifically states that you should not use a landline while at work then this could mean that such calls could be monitored.
If you have used your workplace as an address to receive mail, then this can be opened by your employer and read, whether it is private correspondence or employment related. In most cases, this might not be deliberate but may be because mail received in the mail room is automatically opened unless it is clearly labeled ‘private’ or ‘ confidential’ with your name on it.
Your employer has the right to install and monitor security or surveillance cameras anywhere in the workplace they want and monitor whatever is being filmed. The only exception is in places where you would expect to enjoy a level of privacy such as locker rooms and bathrooms.
Social media is a bit of a gray area, but if this is in relation to your own social media accounts that you use for personal use, your employer has no right to monitor them. Having said that, you shouldn’t assume that personal accounts with Facebook and LinkedIn are not being monitored without your consent. Your employer may have a rule that anything you post on your own social media account which is controversial and/or critical of your employer is prohibited, but how critical you would have to be to galvanize your employer into responding is a moot point. Research has shown that many employees do use social media while at work, but if this is done on work computers or any other workplace internet device, then you can expect that this could be monitored legally.
How to reduce your exposure to workplace monitoring
The best way to reduce your exposure to workplace monitoring is to be familiar with your employer’s guidelines and restrictions and limit any personal use of workplace equipment. Bearing in mind that incoming phone calls and emails may be monitored if you are using workplace equipment, you should advise friends and family to avoid contacting you while at work or at least just contact you on your own cell phone or device when you are not at work or taking a break.
If you believe that your employer’s monitoring is infringing your right to privacy in the workplace, e.g. use of hidden cameras, you should take the matter to the state Department of Labor and ask for their advice. Alternatively, if the matter is a serious breach of your privacy rights, talk to an employment lawyer.