More employers have called workers back to their offices. At the same time, more employers are using new tools to watch where employees go, what they do, and when they work. How much of this is legal? A lot, but there are legal limits.

What Is the Current State of Employee Surveillance?

Technology doesn’t stop evolving or getting cheaper. Employers use many tools to track their workers. Their use has grown quickly, especially as more companies push employees to return to their offices after working from home for years.

Some of the tech has been around for a long time. Others are fairly new to the scene, including the following:

• Badge or key card scans at doorways
• Computer login records
• GPS tracking of vehicles and field workers
• Screenshots and screen recordings of what’s on an employee’s computer
• Keystroke logs
• Website and app tracking
• Webcams
• Call recording software

Return-to-office mandates are a major growth driver. Some employers using them include the following:

• Amazon uses badge swipe records to send automatic notices to workers who do not meet in-office attendance targets
• TikTok built a tool to track badge scans and shares attendance data with managers and workers
• The federal Environmental Protection Agency (EPA) tracks staff badge swipes and laptop logins to confirm workers are in the office, and it warns employees that failing to work in their office is required could lead to discipline, up to and including termination

A survey of 1,500 US-based employers found that:

• 74% use online tracking tools to monitor work activities, including real-time screen tracking (59%) and web browsing logs (62%)
• 75% of those with offices use monitoring methods, including video surveillance (69%) and biometric access controls (58.3%)

A survey of 1,000 employees found that only 22% are aware their online activities are monitored.

What Privacy Rights Do New Jersey Workers Have?

New Jersey gives its workers limited privacy protections. We’re the only state to have a dedicated employer vehicle-tracking notice statute. It requires employers to give written notice to an employee before it uses a tracking device in a vehicle used by an employee. There a $1,000 penalty for the first violation and a $2,500 penalty for subsequent ones.

State courts have long recognized a legal claim called intrusion on seclusion. Under this rule, an employer can be held responsible if it intrudes on your private life in a way that would be highly offensive to a reasonable person. To prove this, you would have to establish the following elements:

• That your employer intentionally intruded or pried into your seclusion without permission
• A reasonable person would find the intrusion highly offensive
• Your employer intruded into a private matter
• The intrusion caused you injuries, damages, or losses

State courts have decided for and against employees in privacy cases, including the following:

• An employee should reasonably expect that her e-mails exchanged with her attorney on a personal, password-protected, web-based e-mail account, even though accessed on a company laptop, would remain private. She had a subjective expectation of privacy which was also objectively reasonable given her employer’s ambiguous privacy policy and the attorney-client nature of her communications
• An employer didn’t violate the privacy rights of a probationary employee it fired because it believed he was spending time on personal matters. A review of his web browsing on an employer-supplied computer confirmed that was the case. The court found defendants had a legitimate interest in monitoring and regulating plaintiff’s workplace computer, informed the plaintiff it had a right to examine material stored on or transmitted through its computers, and the plaintiff had no reasonable expectation of privacy

Important issues in a case involving employees’ privacy rights are whether the worker had a genuine, reasonable expectation of privacy in what was monitored, and whether the employer had a policy and a legitimate business reason for doing so.

Unless you need to work from home as a reasonable accommodation to a disability, or working from home is a term of an employment contract, employers can make working in certain locations a condition of employment. Within reason, they can make an effort to see whether you comply.

Generally speaking, you don’t have a reasonable expectation of privacy concerning your presence and location in an employer’s facility or what you do with an employer-issued computer or using their computer network. It’s not a difficult argument for an employer to make that they have a legitimate interest in knowing what’s going on in their building and how their computers are being used.

Depending on the facts, your employer may have gone beyond what are already fairly intrusive but legal methods, and broken the law in monitoring what you do at work and where you are. Proving that requires evidence.

What Can a New Jersey Employee Do If an Employer Violates Their Privacy Rights?

Often, workers stay quiet about unfair or illegal monitoring because they fear losing their jobs. Depending on the situation, New Jersey and federal laws offer some protection for workers who speak up, commonly referred to as “whistleblowers.”

New Jersey’s Conscientious Employee Protection Act (CEPA), is one of the strongest whistleblower laws in the country. Under CEPA, an employer cannot punish you for objecting to, or refusing to take part in, an activity, policy, or practice that you reasonably believe is illegal or against public policy. This protection applies whether you raise the concern with your supervisor or with an outside agency.

The federal National Labor Relations Act protects your right to discuss the issue with co-workers and join them to raise concerns about your working conditions, which can include how you are monitored. Under this law, your employer cannot fire, discipline, or threaten you for taking part in this kind of activity because it relates to the terms and conditions of your job.

If your employer disciplined you after you objected to surveillance you reasonably believed was illegal, you may or may not have a strong legal claim. How whistleblower laws work can be complex, and employers have considerable leeway in monitoring employees. Before you take a stand against your employer’s policy or practice, call our office to ensure you’re on firm legal ground before you do something that may cost you your job.

Has Your Employer Violated Your Privacy?

For help with workplace privacy or whistleblower disputes, call us at 609-683-7400 to arrange a near-term, reduced-fee initial consultation. We will listen to your facts, discuss the law, and advise you of your options. We accept credit cards and offer appointments from 9 a.m. to 5:30 p.m., Monday through Friday. We also have pre-arranged evening appointments. Contact us today. You will be glad you did!!