One of the major changes that has occurred because of the Pandemic has been the huge increase of work from home employees. The move from the office to home was necessitated by quarantines and concerns about passing the deadly virus.
As this grand experiment has played out, much data has been collected, showing that for many reasons, both the employee and the employer have seen some benefits to workers working from home.
Many concerns have been raised however and in the early days of working from home, there were few answers. Now as we approach the two-year mark of the Pandemic and working from home, we are starting to get more defined understandings of what is allowable.
Why Do Employers Want to Monitor Workers?
Before we can understand this and subsequent questions, we need to understand why employers want to monitor workers? At the end of the day, it may come down to a lack of trust. When in the office, in a common areas, managers and peers can clearly see that employees are at their work station or cubicle and are assumed to be busy at work. Without that common space, how do managers check in on their employees? Can they require daily time on task reports? Certainly, but that hurts productivity. The answers to that concern is the ability to see an employee’s computer screen to monitor their work.
Will workers want to work under those conditions? Even if they have nothing to hide, would honest employees want “big brother” watching their every move? On average, the types of jobs that allow for work from home opportunities, require a more educated employee, that is willing to ask tough questions and set boundaries to the work/life dynamic.
Some of these questions include:
- Can my employer monitor my personal computer?
- What kind of working from home laws are out there?
- To what extent are companies tracking work from home?
From that concern, new concerns have emerged on what is company time, what can or can’t you do on your personal computer, and can your employer monitor or track your productivity?
One of the major benefits of employees working from a central office is the added security; how do employees working from home impact the safety and security of the company?
Both the employee and employer have valid questions about monitoring and tracking work that we need to understand within what is allowable by the law.
What Are Your Rights When Working from Home?
Working from home, as we said, is still very new to most of the country and certainly the world, and as more of this work continues, individuals are starting to wonder, what are the working from home laws? Can my employer monitor my personal computer? Is there a law that requires notification upon tracking work from home, or is it implied that they can tune into your own private computer?
Federal Privacy Laws and Working from Home
While there are plenty of Federal laws that protect privacy, many of those laws apply only to the government itself and not to private companies. These would include the Fourth Amendment and many parts of the ECPA (Electronic Communications Privacy Act).
What protections employees may have from the ECPA as well as other laws, are most likely waived in lieu of employment with a company. Knowing that, it is incumbent upon you as an employee to know what type of agreements you have agreed to while working with your employer.
As always, if you need expert consultation in helping you understand the language of your company’s policy, it is always advisable to reach out to an employment lawyer in NYC, such as to help you understand your company’s policy.
At the end of the day, no matter what laws are or are not on the books, as an employee you should ask yourself this question:
Are you using a company provided device? If so, you should have no expectation of privacy when using a company provided device. Even when off of the clock, you should not use a work-owned device for any personal business, as it can all be monitored.
If you are using your own device/computer, laws are in place to provide you some semblance of privacy, but most likely, you have agreed to waive those protections as a condition of employment. Again, speak with your attorney if you have questions.
State Laws Governing Workplace Privacy
As with many complex legal questions, each U.S. state may have different laws and codes relating to privacy and the workplace, whether at home or in the home office.
There is plenty of information on the internet if you are curious to see what the laws are in your particular state.
Employer Rights to Monitor Online Activity
As we have looked at previously, according to federal and state laws, when using a company-provided device, you should not have any expectation of privacy for any of your online and workplace activities, whether in your home or off the clock, in any locale.
Oftentimes, whether for work monitoring measures or not, many company computers have security protocols that verify location and the use of cameras to ensure that only legitimate employees have access to the device. With these security measures in place, employees cannot expect privacy.
Do I have Any Protections of Privacy as an Employee?
Earlier, we mentioned the ECPA and the prohibitions afforded by it. For the most part, the ECPA does not apply to private employers, as courts have concluded and affirmed the precedent of three exceptions. With that said, the ECPA does not apply to your privacy, whether it is your computer or not if:
- There is a legitimate business reason for monitoring your communications.
- You have consented to allow your communications to be monitored.
- The information being monitored is stored on the networks or equipment of the entity doing the monitoring.
Unless you aggressively negotiated for privacy protections in your work agreement, the ECPA does not provide much of any privacy protection for employees, whether it is their private computer or not.
With this said, we advise you to be careful when dealing on business and personal time.
The best advice that we can give you is that you have two separate computers and networks for business purposes and for personal purposes. Keep those boundaries intact, no matter what and you can ensure your own protection and your career without worry.
Don’t take it as advice, every situation is different, contact your local attorney.
Raised in Brooklyn, New York, Yuriy Moshes remained close to his roots as he received a Bachelor’s of Science degree from Brooklyn College and a Juris Doctor degree from the Touro College Jacob D. Fuchsberg Law Center.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise. Through the years, he has successfully helped hundreds of homeowners in New York and New Jersey remain in their homes or, in the alternative, pursue liquidation options.
