Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is  “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission. 

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.  

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person).  In the workplace, there are varying levels of expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy.  But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring.  Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites.  96% block access to adult sites, 61% to game sites and 50% to social networking sites.  46% track key strokes, content and time spent at the keyboard.  12% monitor the blogosphere to see what is being written about the employer.  43% monitor employee email.  So, yes electronic monitoring is a continuing practice.