Privacy Rights of Employees in Virginia

It’s no secret that employers like to keep tabs on their employees and indeed have a right to do so — within reason, that is. Employers have long monitored employees for legitimate ends, such as to ensure quality standards, prevent waste, and protect against trade secret theft. But 21st-century technologies have given employers more extensive surveillance tools than ever before, making it easier than ever before to cross the line from legitimate monitoring to outright invasions of privacy. While both commonwealth and federal law have attempted to strike a balance between the economic interests of employers and the privacy rights of employees, those laws change frequently as technology evolves. An experienced Richmond employment lawyer can help both employers and employees make sense of them. 

Phone Calls

Employers may monitor and record employee conversations on employer-provided phones. Under Virginia Code § 19.2-62, it is unlawful to intercept or endeavor to intercept any wire, electronic, or oral communication. However, there is a major exception to this rule based on consent. It is not unlawful for an employer to intercept an employee’s phone calls if either (1) the employer is a party to the call or (2) at least one party to the call has given prior consent to the interception. This exception covers both calls between an employer and an employee and calls between an employee and a third party. An employer could obtain consent to intercept employee calls, for example, by including that provision in its employment agreement. 

Emails

Employers may monitor their employees’ work and personal emails (with some restrictions).

Work Email

Under the federal Stored Communications Act, it is a criminal offense for anyone to intentionally access without authorization a facility through which an electronic communication service is provided or intentionally exceed authorization to access that facility. Of course, there is an exception for access by the person or entity providing the wire or electronic communication service — i.e., the employer when the employer provides the email service. Employers should nonetheless consider informing employees that their work email will be monitored, as courts give significant weight to such policies when they are communicated beforehand. 

Personal Email 

Employers may likewise monitor their employees’ personal emails that are sent and received on work-provided computers, provided that the employee has consented to such surveillance (often through an employment contract). However, employers may not log in or attempt to log in to their employees’ personal email accounts. They also may not monitor an employee’s personal email on the employee’s personal devices. A Richmond employment lawyer can help you determine whether access to a particular form of email is within the bounds of commonwealth and federal law. 

Physical Mail 

Employers may open and read physical mail addressed to their employees at their work addresses. While it is a federal offense to open and read someone else’s mail, the United States Postal Services considers mail addressed to employees of an organization at the organization’s address to be properly delivered after it is received at the organization. Employees should thus avoid using their employers’ addresses to receive personal mail. 

Internet Usage

Employers may monitor their employees’ internet usage on devices provided by the employer to the employee. But there are important limitations to this surveillance power. Under Virginia’s Computer Invasion of Privacy Law, it is a crime for anyone — including employers — to access without authority any employment, salary, credit, or other financial or identifying information. This includes Social Security numbers, driver’s license numbers, bank account numbers, credit and debit card numbers, PINs, passwords, and biometric data. Given that employers already know a lot of this information about their employees, violations of this statute in the employment context tend to arise in particularly egregious situations, such as an employer unauthorizedly accessing an employee’s personal passwords. Contact a Richmond employment lawyer for more information about employer access to employee confidential information. 

Video Surveillance 

The question of whether an employer may engage in video surveillance often comes down to whether employees have a reasonable expectation of privacy. In most areas of the workplace — such as their desks, break rooms, and hallways — they do not. Employers are prohibited from surveilling their employees by video in locations where they do have an expectation of privacy, such as in a bathroom or locker room.  

Location Trackers 

Employer use of location trackers is limited to tracking fleet vehicles. It is unlawful under Virginia Code § 18.2-60.5 for an employer (or anyone else, for that matter) to install a location tracking device to track the location of a person without their consent. 

Social Media 

Social media is perhaps the most sensitive area of employer/employee relations, and the law has been slow to catch up to its widespread. In Virginia, the law regulating employer monitoring of employee social media accounts can be found in Virginia Code § 40.1-28.7:5. Under this law, employers are prohibited from requiring current or prospective employees to: 

• Disclose their social media usernames or passwords 
• Add an employee, supervisor, or administrator to their social media contacts

If an employer inadvertently receives an employee’s social media username and password through the use of a work-provided device, the employer is prohibited from using that information to gain access to the employee’s social media account. 

The law also prohibits employers from:

• Taking action against or threatening to discharge, discipline, or otherwise penalize a current employee for exercising their rights under this law
• Failing or refusing to hire a prospective employee for exercising their rights under this law

It is important to note that this law does not prohibit employers from viewing information about current or prospective employees that is publicly available.

Still Have Questions? Get in Touch With a Richmond Employment Lawyer. 

Just as the technological landscape is constantly shifting, so is employee privacy law. If you are an employer with questions about the lengths to which you can go to monitor your employees or an employee who believes your employer has gone too far, you should consider discussing your concerns with an experienced attorney. To get started, please contact a Richmond employment lawyer at Pierce / Jewett by calling 757-304-6655 or using our online contact form.