41 most asked questions on U.S. employee monitoring laws

Employee monitoring in the United States is completely legal. Most federal and state laws allow employers to monitor just about anything that comes in and out of company-owned devices and across their network, particularly where there is a legitimate business intent. Employers are permitted to monitor employee attendance, computers, active/idle time, internet activities, screen content, emails, keystrokes, and more. That said, laws are governing the extent to which monitoring software is used in the workplace.

Basics of monitoring

1. Is monitoring legal in the United States?

Yes. Employee monitoring is totally legal in the U.S. The United States monitoring laws give employers a considerable amount of rights to monitor their employees' activities on workplace devices. It must, however, be backed up with valid business reasons. Some state laws establish that consent is a requirement. As far as federal legislation is concerned, employers have no legal requirements to disclose that they are being monitored to their workers.

2. Is it required to inform employees of the monitoring?

No. Under federal legislation, employers have no legal requirements to disclose to their workers that they are being monitored. It is only required in four U.S. states. Connecticut Gen. Stat.§ 31-48d and Delaware Del. 6 Code § 19-7-705 require employers to notify their staff about the use of monitoring software beforehand. So do the comparatively new Texas and New York Data Protection Acts. In other states, it is completely legal for employers to monitor their employees without consent. Also, most privacy laws give employers discretion regarding how far they can go with monitoring software.

3. Informed consent - mandatory or not?

No. Employers are not required to obtain consent to implement monitoring into an employee's workflow. However, four states still require employers to provide notice and obtain consent from employees, namely:

• Connecticut
• New York
• Texas
• Delaware

In these four states, if an employer does not obtain the employee's consent for monitoring, such actions can be considered spying. Privacy laws have not been repealed, so certain monitoring functions that are overly invasive require the employee's personal consent. If an employer fails to obtain this consent, the employee may sue for violation of their personal boundaries.

4. Monitoring policy – mandatory or not?

Yes, in the U.S., policies and code of conduct are mandatory components for every business. It is recommended that all workplace policies regarding monitoring should:

• Be clearly defined and adequately documented.
• Explicitly outline how and what will be monitored.
• Require a written acknowledgment by employees.
• Clarify that there is little or no expectation of privacy when using company property.
• Clearly state that there'll be no gathering of data unrelated to work performance.
• Set restrictions on the disclosure of personal data to third parties.

5. Is it legal to monitor employees during breaks?

Yes. Employers have the right to monitor their equipment (computers) usage. Computers can be monitored during business hours as well during before and after hours and breaks. For example, employers might want to make sure employees do not practice inappropriate internet use on the company owned computers. The main idea here is that employers can legally monitor computers if they have business reasons for that. To monitor employees during the breaks an consent might be required.

6. Is it legal not to inform employees about what is being monitored?

No, the employer is required to inform employees about the monitoring, except when an employee uses a company device. Under U.S. law, activities conducted on an employer's device are not considered private, so in these cases, the employer may not need to inform employees.

Company’s devices monitoring

7. Is it legal to monitor company’s computers?

Yes. The laws of the United States permit the employer to monitor systems they have ownership of. According to ECPA, if an employer provides a computer, it is company property, and generally, an employer is allowed to monitor all activities employees carry out on it. This includes but is not limited to stored documents/files, downloads, internet usage, and active/idle time. Additionally, company devices used outside the workplace can be monitored as well.

8. Is it legal to monitor company's phones?

Yes. Under U.S. law, any device that an employer has given to an employee is the property of the company, and therefore the employer has every right to monitor that device, including monitoring Internet traffic, GPS geolocation, and viewing screen content.

9. Is it legal to monitor activity on a company device outside of work hours?

Yes, the employer has the right to monitor a company-owned device even during non-business hours, but with limitations. For instance, if an employee uses the device for personal correspondence outside of work hours, the employer cannot monitor the device unless it has been agreed upon beforehand in the employment contract between the employee and the employer.

Personal devices monitoring

10. Is it legal to monitor employees’ personal devices?

Yes. While it appears that federal law may prohibit employers from monitoring personal devices (laptops, tablets, phones). As long as there are set policies such as (BYOD) Bring your own device policies in favor of monitoring the use of employee personal devices for work-related reasons, the law permits the monitoring.

11. Is it legal to monitor employees’ personal computers?

Yes. Under specific conditions, an employer can collect data on a computer belonging to an employee with a court order or a well-defined workplace policy that permits monitoring an employee's computer within the company premises. As a general rule, employees are protected from unauthorized searches of personal possessions by the U.S. Constitution. The Fourth Amendment, in particular, prohibits unreasonable search and seizure of personal items, which limits the employer's right to monitor employees' personal computers. Please note that the fourth amendment only covers the government sector. It does not protect against unreasonable searches and seizures in the private sector.

12. Can employers require employees to install monitoring software on personal devices?

Yes. Generally, employers cannot require employees to install monitoring software on their personal devices. However, if an employee uses personal devices for work, the employer may require the installation of monitoring software to ensure compliance with company policies and regulations.

Phone conversations & content monitoring

13. Is it legal to monitor screen contents and keystrokes?

Yes. In the U.S., it is legal for employers to monitor screen contents and the keystrokes typed per hour on a work computer. A good rule of thumb is to note that anything an employee does on their work computer can be accessed by their employer, especially if there is a clear and documented workplace policy.

14. Is it legal to monitor or record phone conversations?

Yes. There are exemptions if an employee is using the company phone. In addition to the fourth amendment, the Electronic Communications Privacy Act (ECPA) of 1986 states that it is against the law to intentionally intercept any wire, oral, or electronic communication. However, there are standard exceptions: Service provider exception: The service provider is permitted to access electronic communications. Business-related exception: Employers are allowed to monitor the use of company systems for as long as there’s a legitimate business reason behind it. Prior-consent exception: Federal law allows the recording of phone conversations with the permission of at least one party (one-party consent law). Each state in the U.S. has its own rules on how many parties need to consent to the recording of phone conversations.

15. Is it legal to monitor email content?

Yes. Most employers in the U.S. have policies that give them the right to monitor emails. Under United States law, any email an employee sends or receives on a company system (business-related or private emails) is the employer's property and can be accessed or viewed by the company at any time. In some states, consent is important. For example, California and Illinois laws require employers to consent from third parties before accessing employees' emails. In Connecticut and Delaware, employers are to inform workers of monitoring emails. Additionally, Colorado and Tennessee have laws that require companies to set email monitoring policies.

16. Is it legal to monitor private messages and email content?

Yes. In the U.S., this is legal in a few instances. As stated above, this depends on whether a private email or message was sent or received on the employer's equipment/network. If it was sent on a personal device, employers may, in this case, monitor it if there is a policy in place (refer to the section "Is it legal to monitor personal device"). On the other hand, the law also prevents the employer from monitoring private messages and private email accounts that are password protected without the employee's consent.

Video surveillance

17. Is it legal to use video monitoring systems in the workplace?

Yes. U.S. federal laws permit the use of video monitoring systems in the workplace as long as there is a legitimate business purpose for doing so. However, there are areas where the use of video monitoring systems is prohibited. States such as California, New York, and West Virginia have laws restricting the use of video monitoring systems in restrooms, locker rooms, and certain areas where it is rational to expect privacy. Also, an employer is obliged to notify employees and obtain consent. According to federal wiretap laws in two-party states, video recordings must not include audio.

18. Is it legal for an employer to monitor employees through a web camera in a device?

Yes, the devices provided by an employer to an employee, such as cell phones or laptops, can potentially be utilized as surveillance tools, including through the device's webcam. However, it is important to note that monitoring an employee using a personal device in this manner is illegal.

19. Is it legal to monitor employees through a web camera outside of work hours?

No, monitoring actions outside of work hours may be seen as an invasion of an individual's privacy and personal space. Engaging in such actions could potentially lead to legal disputes.

Monitoring using GPS

20. Is it legal to track employee locations using GPS?

Yes. As a rule, the employer has the right to track the geolocation of an employee if the employee uses a company device. So, for example, if an employee takes out of the office a laptop given to him by the company, the employer has the right to keep track of the geolocation of the device.

21. Is it legal to track a company car using GPS?

Yes, as the vehicle is company property, the employer has the legal basis to track its geolocation, even during off-duty hours.

22. Is it legal to track an employee's location outside of work hours?

No, tracking an employee's location without prior agreement and a written agreement between the employee and the employer is considered spy tracking and is not allowed.

Social media monitoring

23. Is it legal to monitor internet and social media activities?

Yes. In most cases, an employer has the right to ensure employees are using the internet for work-related purposes during paid hours. The U.S. laws allow an employer to monitor internet activities such as the websites visited, the amount of time spent online during working hours, and even restrict visits to certain sites. And the issue of whether it is legal to monitor social media activities? Yes, it is legal in the U.S. Every state has its local regulations on monitoring social media. For example, it is legal for employers to carry out pre-employment background checks in certain states before hiring prospective employees. It is also permissible for employers to establish social media policies that restrict employees from indulging during working hours. Additionally, several states have enacted laws that protect employees from employers requiring them to provide a user name or password for a social media account.

24. Is it legal to monitor internet and social media activity outside of work hours?

No, without the employee's prior consent, such actions are illegal. However, if the employee is using a company device, the employer may monitor the employee's internet activity.

25. Is it legal for an employer to keep collected data on their employees' Internet activity?

Yes, the employer can retain the collected data, but they cannot use it for personal purposes without the employee's consent, nor can they disclose it to third parties.

Employers’ rights and obligations

26. Which U.S. federal legislation protects employers’ rights?

At the federal level employers right to monitor their employees is protected by Electronic Communications Privacy Act (ECPA). Since the year 1986 this act provides fundamental legal background for employee tracking and control practices. Its Title II, the Stored Communications Act (SCA), confirms the employer’s right to review files and data created by employees during their working hours. It must be backed up with valid business reasons.

Our monitoring experts have developed ready-to-use policies, announcement samples, and monitoring handbooks for direct use or a sample to create future monitoring policies. Request a copy now. It's free!

27. What are the consequences of violating monitoring laws?

Violating monitoring laws can result in lawsuits, fines, and damage to the employer's reputation. In some cases, it may even lead to criminal liability.

28. Can employers sue employees using information received from monitoring?

Yes, the employer can sue the employee based on the information and evidence gathered through monitoring programs. However, there are some nuances: if the employer violated any laws during the monitoring process, they could potentially face a counterclaim from the employee.

Employee’s rights

29. Are there laws in the U.S. that protect employee privacy in the workplace?

Yes. The United States data protection laws of 1998 place employers under obligations to protect "sensitive personal information." Also, there are federal and state laws that protect worker' privacy in the workplace. Two of these regulations include the Video Privacy Protection Act and the California Consumer Privacy Act (CCPA), which grant employees the right to ask for the details of private information that has been gathered. Employees, however, should understand that their privacy rights are limited in the workplace. Consequently, workplace policies will rule out certain privacy expectations, especially when it comes to company equipment.

30. What US law protects employee privacy?

Electronic Communications Privacy Act of 1986 (ECPA) is the act that protects written, oral, and electronic communication.

31. Can employees sue employers for violating monitoring laws?

Yes. The employee can sue the employer for violating the monitoring law. There could be several reasons for this: Breach of confidentiality: Publishing any of an employee's personal information publicly available to outsiders is a violation of the employee's privacy. Violation of the employee's privacy: Monitoring that is too invasive can violate a person's personal boundaries, such as intercepting personal messages, wiretapping, keylogging, and more.

U.S. monitoring legislation

32. American Data Privacy and Protection Act 2022, June 21

The American Data Privacy and Protection Act, H. R. 8152, was introduced in July 2022. The bill is a comprehensive foundational federal data privacy law, covering personal data collection, storing, sharing, as well as computer monitoring. The ADPPA aims to minimize data collection, stating that employee data collected by an employer may be processed or transferred only for the valid administrative purposes.

33. What is the Wiretap Act?

The Wiretap Act, also known as the Electronic Communications Privacy Act (ECPA), prohibits wiretapping or intercepting calls without the consent of at least one party. Under this law, employers cannot wiretap their employees' phone calls without a valid reason and permission from the law. However, there are exceptions. State authorities may wiretap persons suspected of criminal activity, including employees. Yes, the Electronic Communications Privacy Act also applies to monitoring. Employers must comply with this law when monitoring emails, mail, and other communications between employees.

34. What is the Computer Fraud and Abuse Act (CFAA)

According to this act, no one has the right to access a person's device without a valid reason and without permission, the same applies to employers, if the employer did not obtain the employee's permission, he can be brought to court proceedings under the CFAA.

35. What is the Stored Communications Act (SCA)?

“This provision is intended to address "computer hackers" and corporate spies” - According to this act, the employer cannot intentionally intercept and store electronic messages of his employees without their consent, respectively, if he does it will be followed by litigation.

WorkTime is the only representative of non-invasive monitoring on the market.

Workplace safety

36. Is it legal to use monitoring to prevent harassment and discrimination in the workplace?

Yes, employers can use monitoring to prevent workplace harassment and discrimination. By monitoring employee communication, the employer can identify potential problems and take steps to address them. However, monitoring must be legal and accurate.

Employers should not monitor employees' personal correspondence but can monitor their work chats.

37. Is it legal to use monitoring to detect criminal activity?

Yes, employers can use monitoring to detect criminal activity, but they must adhere to certain conditions. For example, one of these conditions may be conducting the monitoring under the supervision of law enforcement agencies. Employers cannot use monitoring to detect criminal activity at their own discretion and without a valid reason.

38. Is it legal to use monitoring to track personal relationships between employees?

Yes, the employer can use monitoring to observe personal relationships between employees during office hours. However, they cannot monitor personal relationships of employees outside of working hours.

By the state

39. Are employers allowed to monitor employees in New York state?

Yes. Employers allowed to monitor employees in New York state.

Video surveillance

In New York, employers are allowed to install video surveillance in the workplace (private employers are even allowed to do this without notifying employees). However, restrooms, locker rooms, and changing rooms must be avoided, and videos must not include audio.

Phone monitoring or recording

New York wiretapping laws prohibit eavesdropping on any conversation without the consent of at least one party. (one-party consent laws)

Passwords/ Usernames

New York State law prohibits employers from requiring employees to disclose usernames or passwords to their social media accounts. The New York State Privacy Protection and Internet Safety Act determines when and how online personal and private information can be destroyed and establishes responsibilities and enforcement.

Workstations/ company devices

Employers are allowed to monitor workstations and company-owned devices as long as there are legitimate reasons behind the monitoring.

40. Are employers allowed to monitor employees in California state?

Yes. According to California laws, employees have very little expectation of privacy in the workplace.

Video monitoring systems

In California, employers are allowed to install video monitoring systems at work but must avoid areas such as restrooms, locker rooms, and changing rooms. However, employers are required to notify their employees of the monitoring.

Email/ phone monitoring or recording

California Two-party consent laws require employers to notify and get both parties' consent before monitoring or recording conversations.

Passwords/ medical & web banking details

California laws prevent employers from requesting personal information such as social media usernames, passwords, SSN, web banking information, and details on a medical condition.

Workstations/ company devices

Employers are allowed to monitor workstations and company-owned devices as long as there are legitimate reasons behind it.

Handbook

All employers must create a comprehensive handbook that will include both mandatory and recommended policies. Handbooks must explain in detail what employees are permitted or not allowed to do in the workplace. Employers must update handbooks if employment laws or policies change.

41. Are employers allowed to monitor employees in Texas state?

Yes. In Texas, private employers have the right to inspect anything within their premises. With clear workplace privacy policies, they are free to track employees’ performance during their work hours on the company equipment. But under the Texas Privacy Protection Act (HB 4390) that came into effect on the 1st of September, 2019, they have to inform the employees when and how they are monitoring their activities.

Phone calls

Employers are free to listen to the employees’ work-related phone calls with the company work and cell phones, getting the employee’s consent beforehand. As Texas is a “one-party” consent state, the other person might be unaware of the recording. Eavesdropping on private conversations is prohibited.

Video monitoring

In Texas, employers may install cameras in all premises, but for the spaces where employees have high expectation of privacy, like restrooms, break rooms and locker rooms.

Emails and text messages

Employers can read work emails of employees that is the data stored on the company devices. Private messages protected by passwords are secured from unauthorized access and disclosure.

Internet/social media usage

Employers are free to track employee’s internet usage during work hours. According to the NRLA, employers may not screen employees’ social media that is protected under law. It’s illegal to fire or fine them for discussing their working conditions online. But the state bill HB 318, relating to the employment discrimination that was introduced in 2013 is not approved by the Senate yet.

Workstations/company computers

In Texas, employers are allowed to check any information on the company equipment. However, you should be careful with sensitive personal information of employees, protecting it from leak or disclosure.

Is there professional lawyers’ advice on monitoring?

Yes. Lawyers generally advise employers to adopt an ethical approach to monitoring. When considering monitoring and collecting employee data, employers should recognize that the information collected serves a legitimate business purpose. In places where the law requires consent, employers must be explicit on the following to the employees; what is monitored, why, and how the employee monitoring software will work. Also, the company should take adequate security measures to protect information that has been collected.

What is the bottom line?

The United States' legal system tries to balance out the necessity of workplace privacy and monitoring. That said, transparency and flexibility are always good practices. Establishing business goals from the outset is fundamental. Setting clear and well-defined policies in place and bringing employees up to speed will profoundly impact company health and steer the company in the right direction. Disclaimer The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.