Consumer Federation of California

Employers are frequently using monitoring software to make their employees more productive at work, according to an article in the Los Angeles Times, part of a series about the "Tougher Workplace."

Although the Constitution speaks of a "reasonable" expectation of privacy, this is largely not applicable at private employers. Courts are still sifting through the changes that technology has caused in the workplace and figuring out what employers can and can’t do.

The exchange below aims to help clarify some issues.

Can my boss read my email?

Yes. Any email you send on a work-issued computer goes through the company’s servers and can be read by your employer.

Can my boss listen to my phone calls at work?

If they are work-related, your employer can listen to your phone calls. Federal law requires that employers must stop monitoring the calls when they realize they are of a personal nature.

When all of the parties to a call are in California, state law requires that they be informed that the conversation is being monitored, according to the Privacy Rights Clearinghouse.

Can my boss read my text messages sent on my work phone?

Yes. If your company gives you a cellphone, the firm’s officials can see what’s on the cellphone. That’s even if you’re paying for the personal messages you send on your device.

In a landmark case that went all the way to the U.S. Supreme Court, Jeff Quon, a member of the police SWAT team of Ontario, Calif., sued when his employer obtained transcripts of his text messages without his permission.

They found that he’d gone over the number of approved text messages because he’d been sending sexually explicit personal messages on the phone.

The high court ruled in 2010 that Quon did not have a reasonable expectation of privacy because his employer was looking at his text messages for work-related reasons.

Also, an individual’s 4th Amendment rights apply only to government employers, not private employers.

‘You live in a constitutional democracy, but that’s not true when you’re at work,’ said Frederick Lane, the author of ‘The Naked Employee: How Technology is Compromising Workplace Privacy.’  ‘You’re in a capitalistic work environment, and the Constitution, put simply, does not apply to private employers.’

Can my boss monitor me by video in the workplace?

In most cases, yes, though courts have prohibited employers from using video in places such as locker rooms and bathrooms.

Can I be fired for something I write on social media sites?

The standards for this are changing. For example, a ticket taker for the Philadelphia Eagles was fired in 2009 for tweeting that the team was stupid (though he used a harsher word) for not signing a certain player.

But in the last year, the National Labor Relations Board has issued rulings finding that it is illegal for companies to fire people for things they say on social networking sites.

However, the legality of many recent NLRB decisions are in flux after the U.S. Court of Appeals for the District of Columbia Circuit called the recess appointment of three of its members unconstitutional.

What is the status of laws to give me more privacy in the workplace?

Since the 1980s, there have been three major attempts to push electronics privacy laws through Congress, said Lewis Maltby, president of the National Workrights Institute.

But ’employers don’t want the law changed,’ he said in an interview. There is currently nothing on the horizon to increase employees’ privacy rights at work.

What’s next in monitoring technology?

There are companies that offer to embed radio-frequency identification chips under the skin of employees, but three states have laws prohibiting employers from requiring workers to do so.

Some futurists talk about ‘wiggle monitors’ that measure how much you move around at your desk, and thus how engaged you are in your job.

Employers are increasingly monitoring work computers, even when they’re being used at home, to see how much telecommuters are actually working.

They’re also asking employees to wear badges that monitor how often they get up from their desks, the tone of their conversations and how many people they socialize with during the day, according to the Wall Street Journal.

Is there any way to avoid being monitored at work?

Privacy-rights experts encourage employees to bring their personal devices to work and use them whenever possible for personal interactions, because employers cannot access those devices.

However, if you’re using your employer’s Wi-Fi network, your employer can access those messages. Better to use your cellphone provider’s network to send personal information.

Some privacy experts point out that there is one advantage to ever-increasing technology in the workplace — it’s possible to monitor the people at the top as easy as it is the people at the bottom. After all, David Petraeus’ affair would not likely have been made public had the FBI not been able to access his emails.