With the rapid advance of technologies that enable constant connectivity, the once-sharp line between home and work began to blur over the last decade. Laws that govern employees' privacy rights were already lagging behind this reality when the COVID-19 coronavirus hit, and workplaces worldwide were suddenly converted into remote workplaces overnight.
While it could appear that working from home provides more privacy for employees (as seen by memes showing employees working in bed, day drinking, and otherwise slacking off), employers can invade privacy in the remote workplace more easily and less obviously, presenting risks for both employees and employers.
Zooming Into Employee Homes
Videoconferences using Zoom and similar platforms have now replaced meeting rooms and boardrooms. Each day, employees join work video calls from their home offices, living rooms, kitchens, bedrooms, and - embarrassingly - even bathrooms. This presents an unprecedented view into employees' homes that employers and coworkers have never had before. What appears in the background in an employee's videoconference feed can reveal a lot of unintended information about the employee - are they neat or messy, do they live with others, do they have children or pets - and some of this information can lead to potential employment discrimination and harassment. This enhanced access should concern any employee who values their privacy.
Blurring the Work-Personal Divide
Whether certain information is the employee's private property generally depends on whether the employee has a reasonable expectation of privacy over the information in a specific context, and whether the employer has a valid business reason for accessing the information. For this reason, employees should maintain a clear divide between work and personal information as best as possible, accessing and storing the information separately.
However, in the new remote workplace, this is difficult. Many employees are working from home using a combination of employer and personal equipment, such as external monitors, printers, or phones. Despite that fact that the computer in one's home office is still the employer's property, an employee may find it more tempting than perform personal tasks that involve downloading sensitive personal information on a work computer, such as email, online banking, tax preparation, and submitting receipts for insurance purposes.
Once this information is on the employer's computer and server, an employee can lose the ability to claim a reasonable expectation of privacy.
Where Is Employee Data Being Shared and Stored?
Even if employees are careful about what information they share with their employers, the new remote workplace presents new ways to share and store employee information, and with it, an increased risk of cybersecurity breaches.
While sensitive employee information may have been previously stored in secured file cabinets in physical offices, employers have had to quickly adapt to new systems and environments. This may mean that this information is stored in an HR manager's home - something that would have been inconceivable only a few months ago. There is also a likely increase in sensitive information being shared over email since employees cannot simply pass along a piece of paper.
Finally, the increased use of email, video calls, and other electronic communications, as well as the fact that these are being used across employees' home internet connections, which may not all be well protected, means that the risk of cybersecurity breaches is higher than ever.
If employee personal information is hacked, not every state requires employers to notify affected employees of the breach. Moreover, the definition of personal information varies from state to state. An employer may be in one state, but employees are doing their jobs in multiple states or even different countries. Employers face a challenging task of navigating this complex legal landscape, with the result that employee privacy rights may get misinterpreted, or just ignored.
By dispatching employees to remote workplaces, companies have lost the ability to easily surveil employees in the physical office. In response, some employers have stepped up the use of electronic surveillance, including tracking the employees' active time on their computers, web browsing, keystroke data, and email monitoring. Numerous products and programs are available to employers for this purpose, and an employee may not even know their employer is using one.
Whether an employee must give consent or be made aware of such monitoring varies from state to state. Some employers may assume that because an employee monitoring product is publicly available, it complies with state and federal privacy laws, but this is not necessarily true.
Tips to Safeguard Employees' Privacy
Employees working remotely can take steps to protect the privacy of their personal information, both during the coronavirus pandemic and later:
- Determine if your employer requires you to participate in videoconferences, and if so, consider the information you may be inadvertently sharing. Test the video platform ahead of time and move or cover anything you want to be kept private and out of view. Utilize video backgrounds and blurred background filters if needed.
- Keep personal and work data and communications separate as much as possible.
- Avoid forwarding work email to your personal email account, even if it is for work purposes such as printing on your home printer. That type of sharing could give your employer justification to search your personal email. Instead, work with your company's IT department to set up your home printer for direct printing from your work email or request a work-provided printer if one is needed for your remote work.
- Use different passwords for work and personal accounts.
- Do not download sensitive personal information to your work computer, such as banking, credit, or medical information.
- Consider communicating sensitive personal information by telephone rather than email.
Workplace Issues in the Coronavirus Era
COVID-19 continues to alter our economy, our relationships, and our workplaces. Despite these unprecedented transformations, people fortunate enough to have kept their jobs face new interpretations and applications of employment laws.
If you have questions about your workplace privacy rights or workplace disputes, please contact our Executives and Professionals Practice Group today. We are dedicated to monitoring changing rules and regulations and can help you protect and enforce your rights.