Employee Monitoring Software in Texas: Complying with State and Federal Laws
Since the boom of employee monitoring software, employee privacy has been a frequent legal concern in the workplace. What activities and devices can the employer monitor, and what they cannot? What monitoring practices will be considered a violation of employee privacy? The answer to this question depends on the legislation where the organization operates.
The difficulty is that there is usually no specific law regulating employee monitoring. Instead, it is controlled by a complex web of state and federal privacy and labor laws. Today, we will untangle this web for Texas and explore how to use employee monitoring software in compliance with state and federal laws.
The Federal and State Legal Framework
At the federal level, the primary legislation governing electronic communications monitoring is the Electronic Communications Privacy Act (ECPA) of 1986. It generally prohibits the intentional interception of wire, oral, and electronic communications. However, there are exceptions for employers. Employers are free to track electronic communications on company-owned devices in the ordinary course of business or with employee consent. Monitoring private conversations is generally prohibited.
As for state laws, Texas employers should consider the Texas Privacy Protection Act of 2019. According to it, employers must inform employees when and how their activities are monitored. In other words, although monitoring is permitted, employees must be notified about the nature and extent of monitoring practices.
Practices that may be considered intrusive, namely, video and audio surveillance, are permitted but with limitations. While Texas law generally allows video surveillance in public workplace areas without employee consent, audio recording requires at least one-party permission (meaning the recorder must be a participant in the conversation or have consent from one participant). Monitoring private areas or personal devices/accounts requires explicit employee consent.
Texas also recognizes the common law right to privacy and the tort of invasion of privacy, specifically the "intrusion upon seclusion." To claim a violation, an employee must prove an intentional and highly offensive intrusion into private affairs where there is a reasonable expectation of privacy. For example, areas like locker rooms and bathrooms fall under the category of reasonable expectations of privacy. At the same time, personal chats on company-owned devices do not.
Specific monitoring practices can be summarized in the following table:
Practical Steps for Compliant Employee Monitoring
Considering the state and federal regulations, the best practices for Texas organizations that use employee monitoring software will be:
- Employers should define the goal of monitoring and the scope of activities to be monitored to achieve this goal. Tracking should be limited to these specific activities.
- Employers should carefully consider monitoring in cases when the boundaries between work and private life are blurred, for example, home offices or bring your own devices policies.
- Organizations should use less intrusive monitoring methods where possible. For example, managers can set up monitoring software to block unwanted websites and social media instead of meticulously tracking internet and chat history.
- Employers should create detailed monitoring policies and make them available to all affected employees. These documents should describe what data is collected, its storage terms, the purposes of tracking, and the people who can access the data. Organizations should review the monitoring policies regularly, with consultation among human resources and legal professionals, to ensure they comply with the current legislation.
- Texas employers should notify employees about monitoring practices and, ideally, obtain their written consent. Although consent is not always required, getting it helps manage employee expectations and strengthens the employer's legal defense against privacy claims.
- Texas law, like federal law, recognizes that certain areas are inherently private. Places where employees have a high expectation of privacy, such as changing rooms or restrooms, are illegal to monitor. While employers may be permitted to monitor in break rooms or common areas with notice, they should ensure the monitoring is not overly intrusive or harassing.
- Texas employees must not access or track the employees' personal devices, such as laptops or phones, without the owner's explicit consent, even if the device is used for work. Similarly, tracking an employee's personal email or social media accounts, even if the employee accesses them on a company computer, is not allowed.
- Employers may monitor the location of company-owned vehicles and devices if they notify the employees about tracking and acquire their consent.
- Before implementing new monitoring forms, employers should assess their possible impact and consult with privacy regulatory authorities and work councils.
If Texas employers carefully consider both federal and state laws and implement well-defined, transparent monitoring policies, employee monitoring software will become their powerful ally in boosting the productivity and security of the company.