GGU Law Review Blog

Employee Privacy Rights While Working from Home

Over the past few decades and especially under the circumstances of the COVID-19 pandemic, there has been a merger of office and home life. More and more employees are working from home. By bringing work home, employees may be unknowingly bringing a diminished expectation of privacy inside their home as well.

The Merger of Work and Home

Photo by Luke Peters on Unsplash.

Because of COVID-19, forty-two percent of the U.S. labor force is now working from home. This means that employers had to re-evaluate work-place policies so that those same polices now extend into their employees’ homes. Modernly, work-place privacy was already minimal. Most employers now have express and specific privacy policies that employees must consent to.

The phrase, “a man’s home is his castle,” has been a phrase embedded in American society since its conception.  Currently, the labor force in the United States must balance protecting their own privacy rights while working from their “castle” against allowing employers to protect their security interests while employees are absent from the office.         

Employers have the ability to monitor their employees who are working from home in several ways such as recording internet activity, taking screenshots, tracking keystrokes, GPS tracking and more. At times, it may not even be the employer initiating the surveillance/tracking. For example, the popular video conferencing software, Zoom, faced a lot of criticism when users found out that Zoom offered a “attention tracking” feature. This feature identified whether participants focused on something on their computer other than the ongoing Zoom meeting for more than thirty seconds. After the wave of criticism Zoom faced because of this feature, in April of 2020, Zoom announced it had removed that feature as part of its “commitment to the security and privacy of its customers.”

For the most part employers can legally use all of these monitoring tactics, especially if the employee is using a work-provided computer or other equipment. Employers are no longer solely focused on employee productivity but now cite concerns such as protecting trade secrets, avoiding data breaches, finding ways to make remote work easier, and generally dissuading improper behavior. The bottom line is that in the realm of privacy while working from home, just like at the work place, employers have a broad right to monitor their employees.

California Privacy Protections

Photo by Bill Oxford on Unsplash.

Courts have been more prone to weigh the interest of the employer over the privacy of the employee which is why the “a man’s home is his castle,” view is starting to diminish alongside privacy rights when working from home. This diminishing sense of privacy goes beyond the relocation of the workplace to one’s living room. Rather, it is linked to the shortcomings of any legal protections. Until recently, the state of California did not provide specific legal protections for an employee’s privacy until Assembly Bill 25 was signed into law giving employees new rights to privacy. A.B. 25 took effect on January 1, 2021. Now all rights granted by the California Consumer Protection act extend to employees. But these protections do not extend to surveillance of employees in the work-place or at home while working but instead protect personal information.

Federal Privacy Protections

Under federal law, employees do not have many safeguards when it comes to ensuring protection of their privacy. One law that may be helpful is the Electronic Communications Privacy Act of 1986 (ECPA) which protects wire, oral and electronic communications while those communications are being made, in transit, and when they are stored on computers. The Act applies to email, telephone conversations and data stored electronically.

However, the ECPA contains a handful of caveats and exceptions, one being the business exception. This exception allows employers to monitor communications of employees as long as the employer has a claimed legitimate business reason. Additionally, the ECPA includes an exception where a person consents to the interception of the communication. As mentioned above, most employers require their employees to sign a privacy policy and consent form upon employment. Therefore, while the ECPA is a potential tool of protection, that tool does not help employees seeking to protect their privacy from an employer.

Helpful Measures to Increase Protection at Home

The lack of privacy is now extending into the home because employees choose or, in most cases, are being forced to bring their work home. Taking video calls in your living room or bedroom allows your employer and colleagues to get a glimpse into your life that would be otherwise private. This level of intrusion is new for most employees. Now on display are the books on the shelf behind them and possibly the color of the comforter on their bed in a makeshift bedroomoffice. Experts suggest the best way to protect personal privacy is to keep your work and non-work related activities as separate as possible. Ideally, you use one piece of equipment for work and an entirely different one for personal use. If an employee has to use a personal computer for work purposes, they should reach out to the employer’s IT department and see what safeguards can be added on their personal equipment to provide better protections for personal privacy.

Photo by freestocks on Unsplash.

While legally there may not be many options for employees, they should take other steps to protect their privacy. Working from home is still a relatively new concept, so legal scholars are still debating and considering if privacy protections change because the employee is working at home rather than at the office. As working from home increases, the ambiguities surrounding privacy protections in the home of employees will likely start to become clearer. For now, it seems that employees maintain their diminished right to privacy while working from home.

An employee has few if any privacy rights under existing federal and state law. There are, however, critical steps an employee can take to insulate his or her privacy while working at the office or at home, such as become familiar with the employer’s policies and use separate equipment for work and personal activities. Yet, employees should keep in mind that often the interests of an employer have been found to outweigh the privacy rights of an individual employee. While the right to privacy may be flourishing in other spheres such as consumer protection and data/informational protection, it is doing the opposite in the sphere of labor and employment protections and the ability of employers to surveil employees.

1 Comment

  1. Love how contemporary your blog is! Pandemic and lockdown have been traumatic, and it might very well be that much of the trauma involves eradicating the distinction between inside (the home/oikos) and the outside (work, school, the library/the space of commerce). I don’t know that our mind is set up for this kind of implosion: think of hunters and gatherers and how much the outside world figured into their lives. That ZOOM tracking feature…whoa. What a bizarre invasion of kinseathetics and the gaze.

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