Privacy is an ever-evolving concept in a society where people are increasingly spending much of their day online. Yet we all still have some basic expectations of privacy in our daily lives. These expectations extend to our workplace. But how far must your employer go in respecting your privacy?
There are certain laws, such as the Electronic Communications Privacy Act (ECPA) and the National Labor Relations Act (NLRA) that may be used to take legal action against an employer who wantonly tramples on their employees’ privacy rights. At the same time, employers still enjoy fairly broad protections when it comes to workplace surveillance. So employees must have a basic understanding of the law in this area and if they have additional questions or concerns, to speak with a competent Las Vegas employment law attorney about any privacy issues they encounter in the workplace.
Where and When Can an Employer “Snoop” on You?
In general, a Nevada employer may use various surveillance technologies to watch employees as they perform their jobs. This can include both video and audio surveillance. However, location matters. For instance, it is usually legal for an employer to record conversations that occur in their offices. However, it is illegal to place microphones or surveillance areas in a bathroom, employee locker room, or any other area where there is a reasonable expectation of employee privacy.
Employers should also clearly indicate when surveillance cameras are installed in a given area. There should be appropriate signage in a conspicuous location. And the cameras themselves should be readily visible to anyone in the area.
When it comes to computers, smartphones, tablets, and similar devices, employers may legally use software to monitor their employees’ usage of such devices when they are owned and provided by the company. In other words, if you use your work laptop to use your personal social media account, your employer can legally survey and even record that activity. The courts have long held there is a diminished expectation of privacy when employees use their employer’s property for personal reasons.
But what about using your smartphone to make personal calls while at the office? Here, the laws get a bit more complicated. Under the ECPA, it is illegal for anyone to wiretap or eavesdrop on a private telephone conversation unless one party consents to the recording. Some states impose a higher requirement of two-party consent. But Nevada law also requires the consent of just one party.
Even in a one-party state like Nevada, however, an employer may include language in an employee’s contract granting blanket consent to record private telephone conversations that occur on company property. There is also a “business purpose” exception to the ECPA that allows an employer to monitor any employee communications if they can show it was for a legitimate business reason.
Even where surveillance of employee communications is permissible under the ECPA, it may still run afoul of the National Labor Relations Act (NLRA). The NLRA protects the rights of workers to engage in concerted labor activities. Employers cannot use workplace surveillance policies as a pretext for interfering with such rights. For example, an employer could not engage in non-consensual electronic surveillance of a meeting where employees discussed working conditions or possibly forming a union.
Best Practices for Workplace Surveillance in Nevada
When it comes to any form of workplace surveillance, employer transparency is key. Employers need to be upfront about the type and degree of surveillance they conduct. This means not only disclosing the time, place, and manner of any surveillance but also what is expected of employees in terms of the use of their work and personal devices in the office or at another job site.
Also, note some types of surveillance are always forbidden. For example, Nevada law bars employees from demanding login credentials or passwords for their personal social media accounts. Nor may the employer fire or discipline an employee who refuses to turn over such information.
Ultimately, every Nevada business should have a written workplace surveillance policy incorporated into their standard employee handbook. This can help eliminate any potential ambiguity or confusion. If an employee feels that an employer has overstepped its bounds and potentially violated the ECPA, the NLRA, or another federal or state law when it comes to workplace surveillance, they should not hesitate to contact an experienced Las Vegas employment law attorney.