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Privacy Rights in the Workplace: Employees and Employers Beware!

Do you have a right to privacy at work? As an employer or employee, it is imperative that you understand the parameters of your right to privacy while at work. As a general rule, employees are not entitled to an expectation of privacy when using work emails on devices owned by the employer. This is especially true of communications, whether via email or telephone, undertaken on employer owned devices while on the employer's time.   Remember that employer issued computers, laptops and smart phone are owned by the employer and hence, the data can be accessed by the employer, with one very limited exception. The exception to this rule is that an employee is entitled to an expectation of privacy when using a personal email address which is password protected, even if it is accessed through an employer owned device such as a smart phone, tablet or computer.   While this is the general rule in New Jersey and Pennsylvania, you should clarify what the specific rule is in the state where you live and work.  But consider this-regardless of what the legal protections are it is a best practice to never use employer emails and/or devices to conduct personal communications.  That act in itself, even though not a legally protected communication, could create grounds for termination under the employer's personnel rules as outlined in the employee manual or handbook. As an employer, you should make the scope and limitations of this expectation of privacy clear in your employee handbook. As an employee, you must assume that you have absolutely no expectation of privacy in personal communications conducted using your employer's devices. Hence, if you are planning on bringing a claim against your employer for some form of discrimination or harassment, you should never use a work email or work device for any privileged communications with your attorney or witnesses. You should be aware that everything post on the internet or backed up to company servers or the cloud is permanent and while you believe that you have deleted the content, it most likely exists some where and is accessible by your employer.  You are taking a huge risk when discussing your place to bring a claim against the employer in company email or even in private emails on company devices.  You could be exposing important trial/case strategy and breaking your attorney client privilege.  And as a practical matter, the best practice is to ensure that your personal and work lives remain separate, thereby avoiding the abuse of company property.

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