Summary: This article discusses some of the emerging issues employees have to contend with when it comes to employer surveillance, and briefly addresses the laws governing that.
As we move more and more towards an information technology-centered economy—and especially as the pandemic dramatically increased the number of employees working from home, employers have begun to increasingly rely on surveillance tools to monitor their employees. This article explores the limits of what they can do in Texas.
Employers are monitoring employees using many different methods these days. Beyond the “traditional” security camera, you may also encounter things like keyloggers, GPS tracking, audio surveillance, the requirement to have your webcam on throughout the day if working from home, reading employee emails/chat messages, or even social media stalking.
Texas courts simply have not addressed the legality of many of these specific methods. Therefore, it is important to talk about employee privacy law generally.
Under Texas law, you are protected from surveillance where you have a reasonable expectation of privacy. As an employee, Texas courts have generally held that you do not have a reasonable expectation of privacy against your employer monitoring your use of its property like computers or phones. In general, employers may be permitted to use video surveillance in public areas of the workplace, such as hallways, lobbies, and break rooms, and may monitor your public social media presence. On the other hand, certain areas like bathrooms or a locker with your own lock are generally protected. However, employers may try to avoid any claim of a reasonable expectation of privacy by notifying employees of surveillance.
Though unfortunately rather vague, Texas Business and Commerce Code § 521.052(a) does require most employers to implement and maintain “reasonable procedures” to prevent the unlawful use or disclosure employees’ “sensitive personal information.” What is considered sensitive includes such things as medical information, financial information, or your social security number. Thus, an employer collecting and misusing private information about you may be unlawful—especially if it is medical information.
Subject to the above rules, in Texas (unlike some other states) employers can generally engage in video recordings of employees without consent or even notice. When that crosses over into audio surveillance, however, consent is typically going to be required under Texas’s one-party consent wiretapping rules. That is, if your employer is recording conversations to which it is not a party without your notice or consent, that may violate the law.
At the federal level, the Electronic Communications Privacy Act prohibits employers from intentionally intercepting employee communications unless they either have consent or a valid business purpose. The burden would be on the employer to show one of those exceptions.
Unfortunately, in practice this discussion of consent may not mean much because if you are an at-will employee, it is entirely possible an employer might fire you for withholding that consent. However, if the employer’s effort to record is really about suppressing union activity, discussion of pay or working conditions, or other sorts of legally protected activity like whistleblowing, their actions could be prohibited by the National Labor Relations Act or other laws.
If you are concerned about employer surveillance, you may want to review the employer’s policies (wherever they may be) and also check your mail or emails from the employer to see if they refer to those sorts of practices. Any of those might include an easily missed “notice” of surveillance. It is even possible your employer may claim you had notice of and consented to something you actually had no idea existed.
If your employer has violated your privacy, it is possible you may have a claim under Texas or federal law. Though there is always going to be a question of damages (that is, how much you have been harmed), if you are concerned about this, you should consult with an employment lawyer like those at Rob Wiley, P.C. Also, see this blog about your ability to record in the workplace.