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Employers May Be Using Electronic Surveillance to Monitor Employees

January 8, 2014

By Bruce M. Ludwig

Just when you thought only the National Security Agency was monitoring your email and cell phone calls, be aware that your employer may be doing that and more.  Employers are being heavily marketed by software companies trying to sell mobile surveillance applications that run on smartphones and tablets.  One vendor advertises that their tablet and cell phone spyware is “100% invisible and undetectable.”  This “app” allows your employer to read your emails and text messages, see who you called, track your location, and monitor most any activity on the mobile device.  So right now, your employer may be getting regular activity reports on most everything you do on the mobile device that was provided to you as part of your job. 

What legal restrictions are there on this employer spyware?  Very little, if you have no union representation at the workplace.  Under the Federal Electronic Communications Privacy Act, unauthorized or warrantless electronic interception of oral communications is purportedly prohibited, but there are large exceptions to that prohibition when it is your employer who provides the mobile device to you.  In addition, the “consent” which an employer should obtain can be implied and is often found in the fine print of your employer’s rules or communications policy, reserving to the employer the right to intercept, monitor or access emails, etc.  Given this broad exemption, the federal statute provides little workplace privacy to employees when using or just carrying employer provided mobile devices.

Some important protection, however, can be afforded by your union.  Your union, can insist on bargaining over surveillance techniques utilized by your employer.  Moreover, if the employer is using its surveillance to monitor union activity, there is recourse under the labor laws.

The best advice is to be aware of these new secret surveillance techniques and assume your activities are being monitored on your employer-provided mobile devices.

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