Employees are mostly losing the privacy argument that employers can’t monitor their activities on computers, phones and other devices, including vehicles, owned by the employer. So be mindful of the tracks you create and the career damage they may cause.
Here’s the rule:
Your employer and its service providers collect and store everything that can be collected and stored, twenty-four hours a day.
Don’t let your employer’s current silence about your usage fool you. When it needs a reason to get rid of you, it will head straight for your usage data and go for the most embarrassing thing it can find. If it’s lucky, it will find something to force you to leave without a fight, no matter how wrongful the firing.
You’re leaking details about your most personal, private activities if:
You use an employer-provided cell phone, laptop or other mobile device. All employers or their service providers log activities on mobile devices. This includes identities of people you call or who call you, the content of your email and texts, websites you visit and photos and videos. It may include usernames and passwords for accounts. It includes your physical locations as well. One employer accused two employees of having an affair after determining through GPS data that their company iPads and cellphones – all leaking location data around the clock – were physically located within feet of each other all night at a hotel. My advice? Never use employer-owned mobile devices for personal purposes. Get your own. (Some employers now offer ‘containerized” devices that supposedly wall off and hide your personal use on the devices, so you don’t have to carry more than one device. That is worthless. Upon termination, the employer will shut off your access and seize the device, and most third-graders could break the privacy protections.)
You drive a company vehicle: Fleet vehicles use GPS devices to track your whereabouts 24/7, whether moving or parked. These devices link latitude/longitude data with Google Maps and public records to reveal the exact names and addresses of every person and business you visited and the time at each location. I represented a State of Florida employee whose agency secretly placed a GPS device in his state vehicle and tracked him for weeks. It was a waste of time. He never went anywhere improper. But the 24/7 portrait of his life was a creepy reminder that these devices never sleep and never stop reporting on you.
You surf the web on your office desktop. Most employers use software to track activities on desktop computers. This includes applications used, keystroke activity (to see how busy you are), and website visits, including each page within a website and the length of time you spent there. The most common monitoring software, Websense, scans your email content and attachments, reads words in pictures, and flags suspect images. It doesn’t matter if you open emails or not. The software analyzes everything sent, received, stored, uploaded and downloaded.
You made a claim for an on-the-job injury: Workers’ compensation insurers use private investigators (PIs) to spy on you after you report a job-related injury. They hope to show you faked the injury, and you’ll never know they’re there. Employee Ahmed Tagouma, injured at an electronics-parts supplier, was even followed to his church and videotaped through a window as while he prayed. The investigator stood hundreds of feet away and used a zoom lens. (Many now use drones.) Tagouma sued and lost. The court ruled that as distasteful as it seemed, both the PI and Tagouma were in public places, so there was no reasonable expectation of privacy. There have been similar rulings about surveillance in airports, on public streets, and inside stores. The lesson? You’re fair game if you’re visible from some public vantage point.
You engage in activities of a private or sensitive nature in a workplace area not designated for such activities. I have handled cases where employees routinely changed clothes in a secluded storage area, understandably thinking it was private. Unbeknownst to them, their employer had cameras there and elsewhere and was able to monitor the workplace remotely from laptops. Courts have held that even secluded workplace rooms or areas cannot be considered private if they’re not designated for such use.
Don’t Take Invasions of Privacy and Selective Enforcement of Policies Lightly
If, in firing you, your employer relies on allegedly improper activities by you in using a company device or vehicle, seek an employment lawyer immediately. There are strong grounds to attack these terminations, not the least of which is selective enforcement. All employers know their employees are using devices and vehicles for personal use, and they widely ignore it until they decide to single one person out. I’ve yet to meet an employer who could survive a challenge of selective enforcement in device or vehicle usage. Supervisors themselves are often the worse offenders.