Big Brother is Watching in the Workplace

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This article is the first in a three-part series on employees’ rights related to technology use in the office.

The average employee will avoid work by any means necessary.  So how do employers ensure their employees are working efficiently and properly?  As employer-provided technology becomes commonplace, employee monitoring has also become a common practice among employers for a variety of reasons, including efficient use of time, ensuring professional conduct, and quality control.

Employees generally enjoy a limited right to privacy in the workplace, provided that their employer is monitoring them for work-related reasons.  Nowadays, employers provide laptops, cellphones, and tablets to enable employees to work in their offices, as well as remote locations.  As a result, many employers monitor such devices to ensure that they are being used properly.

The question becomes: how may an employee use their work-related device supplied by their employer?  The answer, like so many questions about the law, is that it depends.  Certainly, it may be used to conduct business, but can it additionally be used to make a doctor appointment or to confirm a vacation reservation?  More likely than not, an employer will overlook an employee using a device for such a trivial reasons.

However, in an age where one can send a bounty of proprietary information with the click of a mouse, an employer must see what its employees are sending or it could lose valuable information.

Private Sector

Employees in the private sector are afforded few protections in the workplace when it comes to employer-provided equipment.  Employers are generally able to monitor all equipment they provide to their employees, including their phones, computers (both at work and remote), and their work email accounts.

This means that employers in the private sector may monitor all websites its employees access during working hours, look at any emails sent from an email account that employer has given the employee, and block certain sites the employer deems inappropriate.  A danger lies in the employer’s reaction to certain findings from this monitoring.

In North Carolina, employers and employees enjoy the “employment at will” relationship, which means an employer may fire an at-will employee for any legal reason.  This means that an employer may generally fire an employee if the employee has used employer-provided devices in a way the employer deems inappropriate.

Public Sector

Employees working for the government enjoy greater protections than those in the private sector, as the Fourth Amendment protects employees’ privacy from unreasonable searches and seizures.  In a recent U.S. Supreme Court case, City of Ontario v. Quon, the Court ruled that the Fourth Amendment allowed the government to monitor an employee’s device if it related in some way to their work.  In Quon, the government employer had been checking sent messages to see whether or not they needed to change their provider’s data plan.

One of the few exceptions that limits employer monitoring involves cases that are significantly invasive, such as having cameras mounted in bathrooms or changing rooms.  In general, an employee should assume that any employer-provided equipment is subject to monitoring whether the employer told they employee it would be doing so or not.