Faatimah Jafiq and Ty Hyderally, Esq.

September 25, 2024

In today’s technological landscape, worries about data privacy and secret cameras watching our every move are (justifiably) widespread. It is common for buildings and employers to utilize cameras to monitor employees’ activities on a regular basis. However, in the wake of the COVID-19 pandemic and subsequent Work From Home movement, a major concern for employees is privacy while they work. Federal labor laws protect certain employee rights, such as the right to discuss wages or safe working conditions; however, if employees are being monitored by their employers, they may be more hesitant to do so due to fear of retaliation. The Electronic Communications Privacy Act of 1986 (ECPA) provides a general framework that defines the parameters of electronic monitoring of employee communications for legitimate business purposes.

This issue is increasingly being addressed on a state-level. Many states are beginning to crack down on an employer’s ability to monitor employees. Some employers monitor employee productivity using software that tracks mouse movement or keyboard strokes on the employee laptops and desktops. Others utilize tracking devices in employee devices or vehicles. Video surveillance is quite common for security reasons. In the last decade or so, social media monitoring has increased in demand and necessity. However, a few states require employers who choose to monitor their employees to first alert employees to the existence of the monitoring software. Other states have limited or even banned employee monitoring. Employees generally have limited rights to privacy in telephone conversations and voicemails; however, employers are allowed to access emails stored on company computers.

Remote Workers

In most states, remote workers do not have many privacy rights when it comes to using any company-owned device or software. Text messages and internet or social media browsing on a company-issued device (laptop/phone/tablet/etc) can be accessed by your employer. Your employer has a right to monitor your usage of any company-issued device at any time to ensure that you are performing in accordance with their policies and standards. Generally, your employer should provide a written statement that specifies any time of monitoring they intend to conduct while you work remotely.

New Jersey

Cameras: Employers cannot place cameras in bathrooms or hidden from employee knowledge (such as in ceiling tiles). However, they can place cameras in common areas such as break rooms, hallways, and loading areas.

Telephone Calls and Voicemails: Employers also cannot monitor employee telephone calls or voicemails without telling the employee that they are doing so. If employers wish to monitor calls and voicemails, they must clarify to the employee that the monitoring is being conducted in the “ordinary course of business” (e.g. for training or performance review purposes). Furthermore, if an employer suspects an employee of committing a crime (e.g. theft, fraud, espionage, etc.), the employer can monitor the employee’s calls, but only after alerting the employee that they will be monitoring the call. Under the ECPA[1], Once an employer determines an employee’s call or voicemail is related to private matters, they must stop monitoring immediately.

Vehicle Tracking: Employers in New Jersey are required to provide employees with written notice if they intend to place a tracking device on vehicles used by employees.[2] This law applies whether the employee is using a company-owned vehicle or a personal vehicle. However, this does not include a tracking device[3] that is used for the purpose of documenting “employee expense reimbursement.”

New York

Electronic Monitoring: Since 2022, New York requires private employers to disclose any form of electronic monitoring (e.g. internet browsing, videoconferencing, etc.) to new employees.[4] This notice must be written or electronically signed by all employees AND posted in a conspicuous place in sight of all employees. The law extends surveillance to all employee communications, including phone calls, text messages and emails. However, there are some gray areas. The new law specifically excludes employee activities that are designed to manage the volume of incoming or outgoing emails, voicemails, or internet usage, or activities performed for the sole purpose of security or system maintenance.

Employer monitoring can often feel intrusive and invasive; however, more and more states are beginning to regulate the scope of employer monitoring in efforts to protect employee privacy. Although a majority of states do not have specific data privacy laws, electronic monitoring technologies utilized by employers must be in compliance with federal and state laws, as well as guidelines established by the General Data Protection Regulation (GDPR). Even the National Labor Relations Act (NLRA) has certain restrictions on monitoring technologies for supervising employee union activities. There can be advantages to employee monitoring (such as streamlining the tracking of work hours); however, there are also many disadvantages. The key is to know how and when you are being watched by your employers.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

[1] The Electronic Communications Privacy Act of 1986 (ECPA) protects wire, oral, and electronic communications when they are being made, are in transit, and after they are stored.

[2] On January 18, 2022, Assembly Bill No. 3950 was signed into law in New Jersey. It took effect on April 18, 2022.

[3] A “tracking device” is defined as an electronic device designed or intended to be used for the purpose of tracking the movement of a vehicle, person, or device.

[4] Senate Bill S2628 was signed into law on Nov. 8, 2021 and took effect on May 7, 2022. It mandates that all private-sector employers are required to provide notice of electronic monitoring when hiring new employees.