19 most asked questions on U.S. employee monitoring laws

Employee monitoring in the United States is completely legal. Most federal and state laws allow employers to monitor just about anything that comes in and out of company-owned devices and across their network, particularly where there is a legitimate business intent. Employers are permitted to monitor employee attendance, computers, active/idle time, internet activities, screen content, emails, keystrokes, and more. That said, laws are governing the extent to which monitoring software is used in the workplace.

1. Is employee monitoring legal in the United States?

Yes. Employee monitoring is totally legal in the U.S. The United States monitoring laws give employers a considerable amount of rights to monitor their employees’ activities on workplace devices. It must, however, be backed up with valid business reasons. Some state laws establish that consent is a requirement. As far as federal legislation is concerned, employers have no legal requirements to disclose that they are being monitored to their workers.

2. Is it legal to monitor the company’s computers?

Yes. The laws of the United States permit the employer to monitor systems they have ownership of. According to ECPA, if an employer provides a computer, it is company property, and generally, an employer is allowed to monitor all activities employees carry out on it. This includes but is not limited to stored documents/files, downloads, internet usage, and active/idle time. Additionally, company devices used outside the workplace can be monitored as well.

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3. Is it legal to monitor internet and social media activities?

Yes. In most cases, an employer has the right to ensure employees are using the internet for work-related purposes during paid hours. The U.S. laws allow an employer to monitor internet activities such as the websites visited, the amount of time spent online during working hours, and even restrict visits to certain sites. And the issue of whether it is legal to monitor social media activities?
Yes, it is legal in the U.S. Every state has its local regulations on monitoring social media. For example, it is legal for employers to carry out pre-employment background checks in certain states before hiring prospective employees. It is also permissible for employers to establish social media policies that restrict employees from indulging during working hours. Additionally, several states have enacted laws that protect employees from employers requiring them to provide a user name or password for a social media account.

4. Is it legal to monitor screen contents and keystrokes?

Yes. In the U.S., it is legal for employers to monitor screen contents and the keystrokes typed per hour on a work computer. A good rule of thumb is to note that anything an employee does on their work computer can be accessed by their employer, especially if there is a clear and documented workplace policy.

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5. Is it legal to monitor email content?

Yes. Most employers in the U.S. have policies that give them the right to monitor emails. Under United States law, any email an employee sends or receives on a company system (business-related or private emails) is the employer’s property and can be accessed or viewed by the company at any time. In some states, consent is important. For example, California and Illinois laws require employers to consent from third parties before accessing employees’ emails. In Connecticut and Delaware, employers are to inform workers of monitoring emails. Additionally, Colorado and Tennessee have laws that require companies to set email monitoring policies.

6. Is it legal to monitor or record phone conversations?

Yes. There are exemptions if an employee is using the company phone. In addition to the fourth amendment, the Electronic Communications Privacy Act (ECPA) of 1986 states that it is against the law to intentionally intercept any wire, oral, or electronic communication. However, there are standard exceptions:
Service provider exception: The service provider is permitted to access electronic communications.
Business-related exception: Employers are allowed to monitor the use of company systems for as long as there’s a legitimate business reason behind it.
Prior-consent exception: Federal law allows the recording of phone conversations with the permission of at least one party (one-party consent law). Each state in the U.S. has its own rules on how many parties need to consent to the recording of phone conversations.

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7. Is it legal to use video monitoring systems in the workplace?

Yes. U.S. federal laws permit the use of video monitoring systems in the workplace as long as there is a legitimate business purpose for doing so. However, there are areas where the use of video monitoring systems is prohibited. States such as California, New York, and West Virginia have laws restricting the use of video monitoring systems in restrooms, locker rooms, and certain areas where it is rational to expect privacy. Also, an employer is obliged to notify employees and obtain consent. According to federal wiretap laws in two-party states, video recordings must not include audio.

8. Is it legal to monitor private messages and email content?

Yes. In the U.S., this is legal in a few instances. As stated above, this depends on whether a private email or message was sent or received on the employer’s equipment/network. If it was sent on a personal device, employers may, in this case, monitor it if there is a policy in place (refer to the section “Is it legal to monitor personal device”). On the other hand, the law also prevents the employer from monitoring private messages and private email accounts that are password protected without the employee’s consent.

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9. Is it legal to monitor employees’ personal devices?

Yes. While it appears that federal law may prohibit employers from monitoring personal devices (laptops, tablets, phones). As long as there are set policies such as (BYOD) Bring your own device policies in favor of monitoring the use of employee personal devices for work-related reasons, the law permits the monitoring.

10. Is it legal to monitor employees’ personal computers?

Yes. Under specific conditions, an employer can collect data on a computer belonging to an employee with a court order or a well-defined workplace policy that permits monitoring an employee’s computer within the company premises. As a general rule, employees are protected from unauthorized searches of personal possessions by the U.S. Constitution. The Fourth Amendment, in particular, prohibits unreasonable search and seizure of personal items, which limits the employer’s right to monitor employees’ personal computers. Please note that the fourth amendment only covers the government sector. It does not protect against unreasonable searches and seizures in the private sector.

11. Is it required to inform employees of the monitoring?

No. Under federal legislation, employers have no legal requirements to disclose to their workers that they are being monitored. It is only required in four U.S. states. Connecticut Gen. Stat.§ 31-48d and Delaware Del. 6 Code § 19-7-705 require employers to notify their staff about the use of monitoring software beforehand. So do the comparatively new Texas and New York Data Protection Acts. In other states, it is completely legal for employers to monitor their employees without consent. Also, most privacy laws give employers discretion regarding how far they can go with monitoring software.

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12. Which U.S. federal legislation protects employers rights?

At the federal level employers right to monitor their employees is protected by Electronic Communications Privacy Act (ECPA). Since the year 1986 this act provides fundamental legal background for employee tracking and control practices. Its Title II, the Stored Communications Act (SCA), confirms the employer’s right to review files and data created by employees during their working hours. It must be backed up with valid business reasons.

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13. Are there laws in the U.S. that protect employee privacy in the workplace?

Yes. The United States data protection laws of 1998 place employers under obligations to protect “sensitive personal information.” Also, there are federal and state laws that protect worker’ privacy in the workplace. Two of these regulations include the Video Privacy Protection Act and the California Consumer Privacy Act (CCPA), which grant employees the right to ask for the details of private information that has been gathered. Employees, however, should understand that their privacy rights are limited in the workplace. Consequently, workplace policies will rule out certain privacy expectations, especially when it comes to company equipment.

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14. Are employers allowed to monitor employees in New York state?

Yes. Video surveillance: In New York, employers are allowed to install video surveillance in the workplace (private employers are even allowed to do this without notifying employees). However, restrooms, locker rooms, and changing rooms must be avoided, and videos must not include audio.
Phone monitoring or recording: New York wiretapping laws prohibit eavesdropping on any conversation without the consent of at least one party. (one-party consent laws)

Passwords/ Usernames: New York State law prohibits employers from requiring employees to disclose usernames or passwords to their social media accounts. The New York State Privacy Protection and Internet Safety Act determines when and how online personal and private information can be destroyed and establishes responsibilities and enforcement.
Workstations/ company devices: Employers are allowed to monitor workstations and company-owned devices as long as there are legitimate reasons behind the monitoring.

15. Are employers allowed to monitor employees in California state?

Yes. According to California laws, employees have very little expectation of privacy in the workplace.
Video monitoring systems: In California, employers are allowed to install video monitoring systems at work but must avoid areas such as restrooms, locker rooms, and changing rooms. However, employers are required to notify their employees of the monitoring.
Email/ phone monitoring or recording: California Two-party consent laws require employers to notify and get both parties’ consent before monitoring or recording conversations.
Passwords/ medical & web banking details: California laws prevent employers from requesting personal information such as social media usernames, passwords, SSN, web banking information, and details on a medical condition.
Workstations/ company devices: Employers are allowed to monitor workstations and company-owned devices as long as there are legitimate reasons behind it.
Handbook: All employers must create a comprehensive handbook that will include both mandatory and recommended policies. Handbooks must explain in detail what employees are permitted or not allowed to do in the workplace. Employers must update handbooks if employment laws or policies change.

16. Are employers allowed to monitor employees in Texas state?

Yes. In Texas, private employers have the right to inspect anything within their premises. With clear workplace privacy policies, they are free to track employees’ performance during their work hours on the company equipment. But under the Texas Privacy Protection Act (HB 4390) that came into effect on the 1st of September, 2019, they have to inform the employees when and how they are monitoring their activities.
Phone calls: Employers are free to listen to the employees’ work-related phone calls with the company work and cell phones, getting the employee’s consent beforehand. As Texas is a “one-party” consent state, the other person might be unaware of the recording. Eavesdropping on private conversations is prohibited.
Video monitoring: in Texas, employers may install cameras in all premises, but for the spaces where employees have high expectation of privacy, like restrooms, break rooms and locker rooms.
Emails and text messages: Employers can read work emails of employees that is the data stored on the company devices. Private messages protected by passwords are secured from unauthorized access and disclosure.
Internet/social media usage: Employers are free to track employee’s internet usage during work hours. According to the NRLA, employers may not screen employees’ social media that is protected under law. It’s illegal to fire or fine them for discussing their working conditions online. But the state bill HB 318, relating to the employment discrimination that was introduced in 2013 is not approved by the Senate yet.
Workstations/company computers: in Texas, employers are allowed to check any information on the company equipment. However, you should be careful with sensitive personal information of employees, protecting it from leak or disclosure.

18. What USA law protects employee privacy?

Electronic Communications Privacy Act of 1986 (ECPA) is the act that protects written, oral, and electronic communication.

17. Monitoring policy – mandatory or not?

Yes, in the U.S., policies and code of conduct are mandatory components for every business. It is recommended that all workplace policies regarding monitoring should:

• Be clearly defined and adequately documented.
• Explicitly outline how and what will be monitored.
• Require a written acknowledgment by employees.
• Clarify that there is little or no expectation of privacy when using company property.
• Clearly state that there’ll be no gathering of data unrelated to work performance.
• Set restrictions on the disclosure of personal data to third parties.

18. Is it legal to monitor employees during breaks?

Yes. Employers have the right to monitor their equipment (computers) usage. Computers can be monitored during business hours as well during before and after hours and breaks. For example, employers might want to make sure employees do not practice inappropriate internet use on the company owned computers. The main idea here is that employers can legally monitor computers if they have business reasons for that. To monitor employees during the breaks an consent might be required.

19. American Data Privacy and Protection Act 2022, June 21

The American Data Privacy and Protection Act, H. R. 8152, was introduced in July 2022.
The bill is a comprehensive foundational federal data privacy law, covering personal data collection, storing, sharing, as well as computer monitoring. The ADPPA aims to minimize data collection, stating that employee data collected by an employer may be processed or transferred only for the valid administrative purposes.

Is there professional lawyers’ advice on monitoring?

Yes. Lawyers generally advise employers to adopt an ethical approach to monitoring. When considering monitoring and collecting employee data, employers should recognize that the information collected serves a legitimate business purpose. In places where the law requires consent, employers must be explicit on the following to the employees; what is monitored, why, and how the employee monitoring software will work. Also, the company should take adequate security measures to protect information that has been collected.

What is the bottom line?

The United States’ legal system tries to balance out the necessity of workplace privacy and monitoring. That said, transparency and flexibility are always good practices. Establishing business goals from the outset is fundamental. Setting clear and well-defined policies in place and bringing employees up to speed will profoundly impact company health and steer the company in the right direction.

Disclaimer
The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.