When Is It Illegal to Monitor Employees in California?
In today’s world of modern technology, not to mention the rise of social media giants like Meta and TikTok, it’s no wonder that the U.S. workforce has evolved with these changes.
Now that 61% of Americans with access to an office space are choosing to work from home, U.S. employers from coast to coast have been forced to adapt to not only remain profitable, but to recruit and retain enough top talent to stay afloat in today’s economy.
With the recent surge in remote work, companies are turning to external systems of employee monitoring to track their employees’ locations, activities, output, and more. In doing so, however, many employers—knowingly or otherwise—are in violation of federal employment and privacy laws.
Understanding your employee rights as a California worker is the best way to protect yourself from inappropriate surveillance and other acts of injustice in the workplace, regardless of whether you work from home or at a company office.
Keep reading to learn more about state and federal laws regarding employee privacy and monitoring in California.
What Is Employee Monitoring?
Employee monitoring refers to methods used by employers to surveil the workplace and monitor employees’ whereabouts and activities. However, when such surveillance tools are used in violation of an employee’s rights, employee monitoring can open the door to lawsuits.
Types of Employee Monitoring & Surveillance
There are countless products and software available on the market today to help employers and companies monitor employee activity.
Employee monitoring technologies come in all shapes and sizes. Common examples include:
- Internet and app usage. This allows employers to track and manage employees’ web browsing, such as URL-blocking, web-filtering, and site restrictions. There is even software available to conduct “detailed social media monitoring.”
- Video and screen capture. This allows employers to view their employees’ screens. There is a wide range of video and screen capture technologies, and corresponding functions can range from recording employees while working to taking random images of employees through the webcam or other device.
- Keylogging. This software records every keystroke made on a computer in a readable file with the intention of keeping workers on task. Unsurprisingly, keylogging technologies can put employers at serious legal risk, as it entails a concerning lack of transparency and begs the question of confidentiality, such as password protection and the security of confidential materials.
- GPS software. Employers can also use location tracking to monitor employees. GPS functionality in vehicles and smartphones offers companies the means to physically locate an employee at any time, not to mention track their routes and travel times.
What Laws Protect Against Inappropriate Employee Surveillance?
In addition to federal regulations, each state enforces its own set of laws to protect employee privacy in the workplace.
As you can imagine, state-specific variances in employee privacy laws can confuse workers and blur the lines between lawful and unlawful monitoring practices, making it all the more crucial for California employees to understand their rights at work.
Electronic Communications Act of 1986
The Electronic Communications Act (EPCA) is a federal law passed by Congress to govern the monitoring of electronic communications in U.S. workplaces. It prohibits employers from intentionally intercepting and monitoring employees’ work communications.
While this may seem straightforward, some companies have discovered loopholes to evade certain terms of this Act, including:
- Business Purpose Exception. This exception allows employers to intercept employee work communications on the condition that the interception is warranted by a “legitimate business purpose.”
- Employee Consent. After accepting a new position, it’s common for employees to endure a never-ending series of documents. From waivers to contracts to company policies, there are many dotted lines to sign after accepting a new job. Given the novelty of their employment and tedious onboarding processes, it isn’t unusual for workers to accidentally waive their rights, as one distracted signature can immediately serve as consent to employee monitoring.
Employee Monitoring Under California Law
Fortunately, California is one of few states that provides employees with additional protections beyond federal law.
Under the California Constitution, employees have the right to sue their employers for privacy infringements, so long as evidence exists to demonstrate that the act violated the employee’s reasonable expectation of privacy.
California Privacy Rights Act (CPRA)
In 2018, California passed a law that’s considered to be “the toughest data privacy law” in the United States. The California Consumer Privacy Act (CCPA) gave California consumers more control over how their personal information is collected, used, and distributed by businesses.
But how does this pertain to employees? More notably, the CCPA paved the way for the passage of the California Privacy Rights Act (CPRA) in January 2023. Commonly referred to as “the 2.0 version” of the CCPA, the CPRA essentially extended the same consumer protections to California workers, requiring employers to provide notice to employees regarding data collection.
When Is Employee Monitoring Illegal?
While employee monitoring software can be a reasonable means to maximize company efficiency, employee surveillance can quickly cross the line into inappropriate—and often illegal—territories.
According to a recent study, 80% of major companies monitor employees’ internet, phone, and email usage. Understanding the state and federal laws that safeguard an employee's right to privacy begs the question: When do companies cross the line?
Common Privacy Violations by California Employers
Employee monitoring technologies vary in type and intensity. Factors like industry, region, staff size, budget, and other preferences often play a part in determining what surveillance software, if any, companies choose to utilize.
While some employers opt for very little employee monitoring to track activity, such as Slack or Microsoft Teams, others prefer to operate at the far extreme. Some even go as far as to use “smart” seat cushions to monitor employees’ health metrics, such as heartrate and posture, as a means of tracking productivity.
As a general rule, the more extreme the surveillance, the greater the risk of violating employees’ privacy rights. Consider the following ways that U.S. companies violate privacy laws in their use of employee monitoring software:
- Failure to provide notice of data collection. While employers are legally permitted to monitor activity on company-issued devices, the CPRA requires companies to maintain transparency. Proper notice must be given to employees stating what information was collected and why, as workers retain the right to know where, when, and why employers are using their personal information.
- Illegal surveillance cameras. While the majority of companies use some form of video surveillance in-office, it’s illegal to record such footage in certain locations. Under California Penal Code §647, employers may not install cameras in restrooms, showers, locker rooms, fitting or dressing rooms, or any location where the employee may reasonably expect privacy.
- Illegal recordings. Employers may record employees in common areas and public areas on the condition that the surveillance is in the interest of the business. Companies cannot record employees in areas where they have a reasonable expectation of privacy, such as break rooms, corridors between offices, or off company premises.
- Discriminatory software use. Some features of employee monitoring, such as facial recognition or smart cushions, can result in discrimination, as these technologies can coincide with one of six protected classes under the EEOC (race, religion, national origin, gender, disability, and age).
While employee monitoring can be helpful when used appropriately, such technologies can easily jeopardize employees’ safety and violate their right to privacy in the workplace. As our workforce continues to keep pace with newly introduced technologies, it’s imperative for workers to stay alert and speak up if they suspect their employee rights have been violated by an employer.
Because this is a relatively new legal area, not to mention a rapidly evolving one as bills are continuously introduced and amended, it’s best to consult with an experienced employment law attorney if you suspect illegal employee surveillance in your workplace.
Choose a Firm with an Exclusive Focus on Employment Law
Our accomplished employment lawyer has spent over 25 years advocating for the rights of wronged employees throughout California and has the track record of success to prove it. Our firm has extensive experience representing California workers with a vast range of employment law disputes, from wrongful termination to pregnancy discrimination to sexual harassment.
Given that the average American spends a whopping one-third of their lifetime at work, it’s essential for employees to seek support from a trusted legal advocate if they have been unfairly treated by an employer. Take the first step toward a better professional future by reaching out to our compassionate legal team at Polaris Law Group, LLP.
Have you experienced unfair treatment at work? Our skilled Monterey County employment law attorneys can help protect your employee rights. Call (888) 796-4010 to request a free consultation.