Laws by Country
In the United States, the Federal Wiretapping Act/Electronic Communications Privacy Act prohibits the intentional capture or disclosure of any electronic communication where there is a reasonable expectation of privacy. In order for a US employer to legally monitor employees, the employees must have full knowledge and provide prior consent. In addition to the federal laws, many states have wiretapping laws, statutes regulating employee monitoring, or both.
Through Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) commercial employers are limited in how they may collect, store and disclose employees’ personal information. Additionally, employees have the right to access and review their personal information and make corrections to any information they find to be inaccurate. Canada’s provincial governments of British Columbia, Alberta, and Quebec have opted out of PIPEDA, because each has substantially more strict privacy protection laws. For instance, British Columbia's Personal Information Privacy Act stipulates that an employee must first give consent before an employer can collect personal information.
In the UK, the legislation surrounding employee surveillance is complex and often confusing. The Data Protection Act 1998 (DPA) and the Regulation of Investigatory Powers Act 2000 (RIPA) ban employers fr om monitoring employees’ calls and from retrieving personal e-mails without the employee's permission. However, the Telecommunications (Lawful Business Practice) Interception of Communications Regulations 2000 outlines lim ited employer rights to employee monitoring under certain circumstances.
In Europe, laws can also be confusing. An employee’s general right to privacy is protected under the European Convention on Human Rights (Convention), which governs the 47 Council of Europe member states (including EU member states), and the Data Protection Directive (95/46/EC) (Directive), which applies to EU member states. Companies that monitor employees' use of phones, e-mail, and the internet, and fail to inform employees or obtain their permission beforehand, can be sued under Article 8 of the European Convention on Human Rights, which has broad protections over the employees’ right to privacy. Various differences in the ways EU member states have utilized the Directive’s provisions, such as Germany, Sweden, and the UK, must also be taken into consideration.
Monitoring Across Borders
Employers who monitor employees in different countries must be aware of the legislature of both their country and that of the employee, as both may apply. Certain governing bodies may restrict data from leaving its jurisdiction. For example, in European Union legislation, countries outside the EU are considered “third countries”. By EU law, personal data cannot be transferred to a third country if the country cannot provide an adequate level of protection.
Employee Rights to Privacy
One common thread throughout these laws is the protection of the employee’s right to privacy. Even though employees may be on company time and using company property, they still maintain certain rights to privacy. Discovering protected information regarding an employee’s sexual orientation, religious affiliations, political views, and medical issues may open the door to discrimination lawsuits if the information is misused or falls into the wrong hands. To avoid violating privacy laws employers should provide complete disclosure regarding any employee monitoring. However, many legal experts advise that notifying employees may not provide complete protection.
Employers must be mindful of the differences in employee perception between monitoring and surveillance. Monitoring occurs when employers occasionally view a company computer or similar equipment for proper use. This type of activity serves a reasonable purpose and, with prior consent and notification, follows recommended procedures to protect a worker's private information. However, surveillance, best defined as tracking an individual's activities, can generate negative pushback from employees and have the opposite effect on productivity. Employees have reported that being under surveillance caused them to worry more about facing disciplinary action after making a mistake, made them feel as though management did not trust them to do their jobs, and experience decreased job satisfaction because of the perceived mistrust.
For these reasons, companies should have clear policies on employee monitoring and this information should be frequently communicated to employees. During the Remote Utilities “remote surveillance” session when the web cam is activated the program displays a warning banner on the remote computer screen that reads “Attention! Video surveillance is activated!” This is a great example of providing a clear and frequent notice, and this practice ensures that the user is aware that someone may be watching them (or listening to what they say). This warning is designed to allow the user on the other end to decide whether they want to be seen and/or heard by someone thousands of miles away.
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