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Commonly Asked Questions About the Surveillance of Telecommuting Workers

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Working from home has its advantages, but there are some potential drawbacks, including the right of your employer to monitor what you do while on the job.

This ability to monitor employees has some limits, which we’ll address with the following questions.

If my employer catches me doing something that’s not work-related during working hours, does that mean they can reduce my pay?

I’ll answer this question as if it applies to a non-exempt employee under the Fair Labor Standards Act (FLSA). The quick answer is it’s possible, but it depends on your employer’s break policy. The FLSA does not require private employers to provide rest or meal breaks, although some states have such requirements.

The FLSA requires that if an employer chooses to provide short breaks (usually 20 minutes or less) to employees, then that break time must be counted as hours worked for pay purposes.

So if you’re an hourly worker subject to the FLSA, your employer allows you to take short breaks, and you took two 10 minute breaks to check your personal email accounts, then your employer must still pay you for those two 10 minute breaks.

Can my employer track my physical movements with GPS?

Yes, but the law isn’t completely clear for all situations.

For the most part, your employer may track your location with GPS if you’re using a company vehicle or using a company electronic device. The law isn’t that clear when it comes to GPS tracking using your personal property without your consent.

Regardless of how your employer tracks you, it could potentially be an unfair labor practice if they track your location while you engage in a concerted activity or collective bargaining.

Is my employer allowed to watch me work through my computer’s webcam?

Probably not. There is case law that allows employers to watch their employees, but these cases usually deal with security cameras at work and there are limitations when there’s an expectation of privacy, such as a bathroom.

The answer will depend on a variety of factors, such as:

• The business need to undertake this level of employee monitoring.
• The employee’s expectation of privacy.
• Whether the employer gave notice or obtained consent for such monitoring.
• Who owns the device doing the video monitoring.
In reality, it may be difficult for an employer to justify taking video or still pictures of you during business hours. Any motivation for doing so can probably be accomplished through less invasive means, including keystroke logging, noting computer activity levels and recording computer screenshots.

What if my employer inadvertently sees private medical information on my computer?

Your employer may not be required to keep this information confidential pursuant to the Americans with Disabilities Act of 1990 or the Family and Medical Leave Act of 1993.

In the Fourth Circuit (which includes Virginia, Maryland, North Carolina, South Carolina and West Virginia), only information that an employer obtains through an employer’s medical exam or inquiry is subject to confidentiality requirements.

Therefore, it’s possible that if you were checking your medical test results online while your computer happened to take a screenshot at that moment, the information from that screenshot would no longer be private as far as your employer is concerned.

The HIPAA Privacy Rule isn’t likely to be applicable here, as most employers do not qualify as a “covered entity” with respect to HIPAA’s medical information confidentiality requirements.

Is my employer allowed to read my emails?

When it comes to emails using employer’s servers or accounts, the answer to this question is usually going to be “yes.” This answer isn’t likely to change whether you’re using a work or personal device.

As for personal emails, employees may not have an expectation of privacy in certain situations. For example, an employee may not have the right to privacy of a personal email account that’s accessed using a company tablet, laptop or smartphone.

Can my employer listen to my telephone calls?

It depends on your state’s wiretap laws regarding consent and the content of the telephone call being recorded.

The Electronic Communications Privacy Act of 1986 (ECPA) prohibits the recording of telephone conversations, but there’s a business use exception when an employer has a legitimate business reason for listening in. The ECPA also allows telephone monitoring if the employee consents to it. But keep in mind that some states may require all parties to the telephone conversation to consent to its recording, including those with no connection with your employer.

Also, once an employer determines a telephone call is personal, they must stop recording or listening in as there wouldn’t be a legitimate business reason for doing so.

Can my employer monitoring me lead to discrimination?

Absolutely. During the course of legal surveillance, an employer may discover something about you they didn’t previously know. Perhaps it’s a disability, membership in a particular group or participation in a recreational activity that’s legal but your employer disapproves of. With this new knowledge, your employer could decide to discriminate against you.

Some of this discrimination may be legal, but often it’s not. Even when it’s not legal, it may be best to maintain the privacy of certain information as opposed to relying on the law to keep your employer quiet about what it has discovered.

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