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

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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 employee 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 employee 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 to their workers that they are being monitored.

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 employee 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 like 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 legal to monitor social media activities?
Yes, it is legal in the U.S. Every state has its local regulations on monitoring employee 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.

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 emails sent to employees. 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 Employees 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.

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 the monitoring of an employee’s computer within 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.

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

Yes. It is only required in two U.S. states. Since the laws in the United States vary, states like 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. While 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 employee monitoring software.

12. Employee 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 employee 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.

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” of their employees. Also, there are federal and state laws that protect employees’ privacy in the workplace. Two of these regulations include the Video Privacy Protection Act and the California Consumer Privacy Act (CCPA) that 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.

Is there professional lawyers’ advice on monitoring?

Yes. Lawyers generally advise employers to adopt an ethical approach to employee 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 employee information that has been collected.

What is the bottom line?

The legal system in the United States tries to balance out the necessity of workplace privacy and employee 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.

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Bonus!

California employee monitoring laws (simplified)

According to California laws, employees have very little expectation of privacy in the workplace. That said, clearly defined policies notifying employees about monitoring is crucial.
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 to 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.
Employee handbook: All employers must create a comprehensive employee 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.

New York employee monitoring laws (simplified)

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, areas such as 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 of 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 also 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 it.

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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.

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