One aspect of workplace practices changed immensely during the pandemic. Many workers switched to work-from-home structures. As employers allowed workers to bring home company equipment and complete job duties at home, a couple of things happened.

First, workers tended to be more productive when they were at home and away from chatty coworkers. Second, business owners started using surveillance to protect business interests. Workers weren’t always happy with their bosses tracking their internet and computer usage and turning on video cameras or monitoring software to track where an employee was during working hours. 

Where does the balance between workplace surveillance and employee privacy fall? What do the laws say about an employee’s right to privacy and a company’s right to monitor the work their employees do both at work and in work-from-home situations?

What Is Workplace Surveillance?

Workplace surveillance is the intentional tracking of an employee’s activity in the workplace.  That workplace might be located at a remote employee’s home office or at the company itself. There are three types of surveillance.

Biometric (Facial recognition and fingerprint scanners)

Electronic (Emails, internet usage, monitoring software, and phone call logs)

Physical (Keycards, time clocks, and video cameras)

Security is one reason for workplace surveillance. It’s a way to check that employees are not stealing items or allowing unauthorized people to access a business. It can also be used for the employee’s security by monitoring potential threats when an employee is working alone at night.

Surveillance is also used to monitor productivity and make sure employees are doing the work they’re paid to do and not goofing off or sleeping on the job. Sometimes, surveillance is mandated by laws for compliance, such as a business insurance company requiring a jewelry store to have security cameras installed and recording 24/7.

What Are California’s Laws Regarding Employee Privacy?

California passed the California Consumer Privacy Act in 2020. It took three years, but the restriction of this law covering only consumers ended in 2023. Starting on January 1, 2023, workers gained privacy rights, too. 

The CCPA covers workers at for-profit businesses with more than $25 million in gross annual revenue, who get at least half of their revenue from selling or sharing consumer information, or who buy, share, or sell personal information for more than 99,999 people. The collective term workers covers contractors, applicants, and people who worked for the company in the past. 

The CCPA provides workers with the right to information regarding surveillance at work and why that monitoring is happening. This ensures that workers know if an employer is collecting and selling information about them. If an employer is buying information about its employees, the workers need to know about it and have the chance to opt out or correct the information that’s collected.

Under the CCPA, these rights are protected.

You have the right to access any data collected on you.

You have the right to exercise your rights without retaliation.

You have the right to know when your employer is collecting data on you.

You have the right to limit what your employer can use your private data (biometrics, genetic or race information, health/medical information, religion, sexual orientation, SSN, and union information) for.

You have the right to opt out of the sharing or sale of your data.

California also has a workplace privacy law in place. That law provides additional protections.

Background checks are possible, but you cannot be denied a job based on a past arrest or criminal record.

Employers are allowed to monitor workplace communications, and that includes emails, phone calls, text messages, and voicemail.

Employers cannot require you to provide you with information about your social media accounts. They also cannot ask you to hand over your login credentials on things like Facebook, Reddit, Twitter/X, or YouTube. They can view and monitor your personal social media accounts, however, so it’s best to watch what you say and make sure your privacy settings protect you.

If an employer is videotaping workers, they must provide written notice and you must sign that you have been made aware of the videotaping.

What About Federal Laws?

Those laws apply to Californian workers, but there are also federal laws that add to the protection.

The federal government passed the Electronic Communications Privacy Act (ECPA) in 1986. It updated the 1968 Wiretap Act. The update covered the use of computers and other electronics used to record conversations. Businesses cannot use illegally obtained recordings and data against you. There are also regulations on when a company can monitor and collect electronic communications.

Because of the ECPA and Stored Communications Act, companies can monitor employee’s actions during work hours, even for remote workers, but they must have a legitimate reason. This tends to favor an employer as there are many valid reasons for monitoring an employee’s actions during a workday. You may be honest, but there are many stories out there of workers watching movies or taking naps when they should be working.

You can protect yourself by making sure you’re only doing personal things like checking the weather during a break. Use your personal internet and devices for those tasks. 

Read contracts carefully and make sure you understand how your company tracks the work you do. If the contract states the plant where you work is adding cameras in all hallways and departments, you have to sign that you’ve been made aware of these policies. Don’t sign if you have questions. Get clarification in writing before you agree to it. Cameras should never be in areas like a bathroom or room designated for breastfeeding workers to express their milk.

The Impact of Emerging Technology on Privacy

Newer technology is also going to make it easier to monitor employees. Wearable devices like smartwatches, smartphone trackers, and AI are all going to simplify monitoring. Does your badge track where you sign in and sign out or where you are? Smart badges can do that. It’s food for thought. That’s why it’s important to keep up with the changing technology and laws that apply at your workplace. 

If you’re a union worker, talk to your union representative about surveillance. Unions may have different arrangements in the bargaining agreement. Make sure you read that, too. Don’t agree to anything you don’t understand.

Whether you’re an employer looking for help creating workplace policies covering privacy rights for onsite, hybrid, or remote workers or employees who believe their rights were violated, Shegerian Conniff can help. Reach us online to get the answers you need regarding employment law and privacy rights.