Can My Boss Spy on Me at Work?
The short answer is yes, they can spy on you at work. They might not even have to give you notice. If the conversations are happening on office equipment or company software, they could be legally monitored and even recorded. You cannot expect any right to personal privacy. A good general rule would be to keep your private conversations away from the office. Otherwise “Anything you say may be used against you.”
The Employer Argument
Employers often feel snooping is justified. Most companies distribute notice of “business-use only” policies concerning use of company systems and devices. Employees who violate that policy do so at their own peril. This kind of policy is meant to put you on notice. “The Man” is monitoring everyone’s communication activities in the workplace. You can also be monitored at home if you use devices provided by the employer. The same holds true if you are working remotely. If you read your gmail account on your office laptop, your employer may have access. Don’t be shocked if you get called out for shopping at Zappos on your company desktop. Big Brother sees all.
Your employer can monitor, listen in and/or record your phone calls. Conversations happening at work on a company phone are not private. Has the company provided a cell phone for company business? If so, your employer has lawful access to any voice mail or text messages stored on that device. Even if it’s a call from your mother.
If you’re on an employer-provided computer, then your boss may view whatever she wants to on that equipment. She can read personal emails. She can peruse all your bikini-clad vacation photos, or anything else you’ve got stashed on there. The laptop they gave you for home or travel isn’t really yours. It is important to remember that. If you’re fired, you can be asked to turn that equipment over without time to retrieve all that private data. We all know that might prove to be somewhat embarrassing, or worse.
Employer Email Systems:
Company email systems usually include a business record-keeping system. It’s almost required. So every email you write, including that one to your best friend over in accounting where you complained that you hate working for the company. That email is fair game. The same holds true for any internal messaging systems. In fact, Skype’s messaging software has a nifty feature that transfers your personal message log from one computer to another whenever you log in with the same ID. When you log in at work with a personal ID, your personal chats are downloaded to your desktop. Your boss is now free to read them. Those late-night drunk chats with an ex-boyfriend are fair game. Your supervisor may read them as part of the next employee-productivity survey. There are some things you may be good at that your boss really doesn’t need to know.
Personal Email Accounts:
Anything you use at work may be monitored. When you log in to a private email account at work, your employer may notice. Password-protected personal accounts are supposed to be private, but your company may have a “business-only” policy during work hours. If so, they may feel justified in taking a peek. On most networks, The Boss can review your browsing history. Your supervisor may even have installed keystroke logging software to see exactly how much work is getting done. The Boss may run across private information in this manner. In an at-will state like California, you could be suddenly fired for complaining to your wife about a pushy manager in a personal email, and you’ll never know why. So think before you type, or better yet, use your personal devices to keep it outside the office.
Surveillance Cameras, Video Monitoring & Keyboard Tracking:
Your boss is allowed to monitor the office with surveillance cameras. This is particularly true in public and common areas. Bathrooms and locker rooms are usually off limits. Recent surveys show that approximately two-thirds of employers are engaging in some type of employee surveillance practices.
Consent to Monitoring:
In California, recording a conversation requires that the party being recorded is asked for his or her consent. In business, that “consent” requires only that the employer give notice of its policy to monitor conversations in advance. Your consent will likely be implied if the boss told you he’s listening in, and you kept on working there.
Everybody’s on Facebook. Your mom, your high school boyfriend. Some of us don’t think twice about checking in at work. In California, your boss cannot ask you for your password to any of your personal social media accounts. No employer may ask, not even to check up on your off duty activities or to “vet” you for employment. But be warned, if you’re Facebooking at work, the boss may see your postings on camera. Just in case, maybe you want to rethink sharing all those sexy photos you took with a co-worker at the beach so everyone at work can see what a great time you had.
Twitter, Snapchat, Instagram:
These platforms, and others like them, are meant to be public. So it’s probably a really good idea not to post anything there that you don’t want the whole world to see. Why give your boss a chance to stumble across that photo of you doing shots with friends the night before you called in sick for the Tuesday morning staff meeting?
If you are on company equipment, the boss can almost always make a case that accessing any communication, image or other data attached to that equipment is perfectly legal. That means the employer can see everything you write, post and send. It does not matter where you are using it.
If you are using your own equipment, you have an expectation of privacy that precludes your boss from taking a quick peek at what you do in your off hours. Employers have no lawful right to view these communications. Most likely, they will not attempt to do so.
Storing of Evidence:
Employees who are being subjected to workplace discrimination and/or harassment should use caution discussing any of these claims over company equipment. An exception would be for the purpose of informing HR of the discrimination and cooperating in a subsequent investigation. If you are making a record of the discrimination, be sure to save those suggestive or racially charged emails to a personal device. These claims have a way of heating up. If you find out you’ve been fired for reporting that handsy boss to HR, he can take back his equipment in a heartbeat. There goes your carefully stored evidence.
Although your lawyer will warn the company against spoliation, (a fancy word for destroying evidence) we all know things can disappear. Your employer might have “a hard drive problem that corrupted the data by accident.” Make your record by saving the files to a pdf. Store the information on a thumb drive you own. Remember not to take any information that rightfully belongs to the company. This would include sensitive work-related emails or corporate documents. That can result in fines, or in rare cases, actual time in the slammer.
Final Words of Caution:
With our personal lives bleeding ever more regularly into “The Cloud.” Nothing is really private anymore. Protect yourself from unwanted intrusion by the watchful eyes of The Man to whatever extent you can. Think about what you share socially and who might see it. Don’t trash the boss in ways that can be overheard or recorded. Remember to post those racy beach photos for “friends only” viewing. Privacy settings, people, that’s what they’re there for. You never know when something you posted in private will be ripped from your personal cloud storage by a twisted hacker who lurks in the darkest part of the Dark Web, for immediate publication by Wikileaks. And you thought your life wasn’t exciting enough…
If you are in need of legal advice about any of the issues raised in this post, we at Lazear Mack are ready to help you fight for your rights. Just don’t make our job impossible by updating your status photo after downing multiple shots of tequila.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117