In today’s interconnected world, where personal and professional boundaries often blur, employees may find themselves contemplating their employer’s monitoring of employees’ off-duty conduct.
While maintaining a productive work environment is a legitimate concern for employers, there are legal and ethical considerations from monitoring non-work communications.
Company policies
Employers can establish clear company policies outlining acceptable off-duty behavior. This may include their use of computer employee monitoring software when employees use company devices for personal communications. Demand for that type of software increased 48% in 2023 compared to 2019. Employers should communicate all policies to employees to ensure transparency and understanding.
Social media scrutiny
One common avenue for monitoring off-duty conduct is through social media. Employers may view public profiles, and some may argue this is within their rights. However, problems can arise when employers request access to private accounts or use deceptive means to gain non-public information. Such actions may infringe on an employee’s right to privacy.
Discrimination concerns
Monitoring off-duty conduct can lead to discrimination concerns if certain groups are disproportionately targeted. For instance, if an employer singles out employees based on race, gender or other protected characteristics, it can raise legal red flags.
Surveillance outside the workplace
Employers need to be cautious when extending surveillance beyond the workplace. If an employer monitors an employee’s activities in places where they have a reasonable expectation of privacy, it may infringe on their personal rights and be a form of harassment. This includes locations such as homes or private events. An employer’s conduct may also constitute retaliation if the employer is reacting to an employer’s complaints on social media about discrimination in the workplace.
For state and local government employees, there may also be First Amendment considerations. For example, some courts have held that deputy sheriffs who were fired because they used social media to support an opponent of the incumbent county sheriff in an election, could bring a First Amendment retaliation claim. In contrast, when school teachers and other educators have attempted to argue that social media postings relating to sexual activities should be protected, some courts have found that the disruptive effect of these activities to the classroom outweigh any First Amendment interest that the educator may have.
Employers generally have the right to set expectations for employee behavior during working hours. Extending this authority to monitor off-duty conduct requires a delicate balance and consideration of whether this monitoring could lead to discrimination or retaliation. For employees who feel that their employers crossed personal lines, there are different avenues to take.
