Can SC Employers Search or Surveil Their Employees?

A South Carolina employee’s expectation of privacy in the workplace may differ from the employer’s perception of what the employee is entitled to. As experienced employment attorneys in South Carolina, the attorneys at Gignilliat, Savitz & Bettis are routinely asked, “How much privacy do employees have in the workplace?” or “Can I search an employee or read their emails?” The most important consideration in answering this question is the context, so, unfortunately, the most accurate response is that it depends on the circumstances. An employer in South Carolina must balance the need for ensuring safety and accountability in the workplace and the employer’s legitimate business interests with the employees’ reasonable expectation of privacy.

Context is Key to Determining Whether an Employer can Search or Surveil an Employee

An employee’s expectation of privacy in South Carolina depends on many factors including:

• whether the employer is governmental or private;
• the item being searched;
• the policies and procedures the employee is aware of;
• the location where the monitoring occurs;
• the form of technology; and
• other subjective factors.

In general, employers may search for data stored on computers, devices, or networks that belong to the employer. Employers may also search for desks, lockers, and the like for company property. However, when courts are faced with lawsuits stemming from surveillance in the workplace, in addition to considering all applicable laws, the courts will weigh the expectation of privacy the employees have against the legitimate business interest the employer claims. The more personal an item is, the more likely the courts will find the employee had a reasonable expectation of privacy. This means an employee in SC likely would have fewer expectations of privacy for items stored in an unlocked desk drawer than those stored in a purse which was in a locker secured by a lock the employee provided for herself. In addition, the courts will consider employer policies that may limit employees’ expectation of privacy.

Conducting Lawful Searches of Employees in South Carolina

Employers in South Carolina frequently ask our experienced employment attorneys whether they have a right to search employees’ communications or belongings. As addressed above, the most significant consideration is the context of the search. It is paramount for employers to stay within the bounds of the law when investigating and searching items belonging to or being used by an employee, and the law is constantly changing to keep up with technology.

An employer in South Carolina is generally permitted to monitor an employee’s company email account, text messages sent on a company device and website visits that appear on a company-owned piece of technology or a company-owned network. By contrast, an employer generally may not search or monitor an employee’s private email account, even if the employee uses his or her company-provided device, or a company network, to access the private account.

The type of business the employee is working for may also affect the extent of the employee’s right to privacy. For example, a government employee may have a constitutionally protected expectation of privacy thanks to the Fourth Amendment. An employee working for a private employer may not have this same protection. A governmental employer may in some circumstances need to articulate particularized suspicion of wrongdoing before engaging in a search, where a private employer may be able to search employer-owned property at-will. An employer’s ability to search clearly personal items, such as a briefcase, car, purse, locker, or other personal parcels on the employer’s premises, may depend on the employee’s reasonable expectation of privacy and the employer’s legitimate business interest in the search.

A search of an employee’s personal belongings may be permitted if the employee is made aware of the employer’s policies and procedures set forth details of possible searches. However, suspicionless searches are generally disfavored by the courts. Furthermore, searches, where the employee is led to believe or is actually restrained from leaving a room or the premises, are strongly disfavored and may open the employee to civil claims for false imprisonment.

While private employers often have more leeway to surveil employees than do public employers, engaging in surveillance that is designed to discover or monitor concerted activity by employees (unionizing) is unlawful under the National Labor Relations Act. Private employers that suspect organizing activity by their employees must take care not to engage in surveillance or they may face unfair labor practice charges by the National Labor Relations Board.

Monitoring Employee’s Conversations in South Carolina

Employers in South Carolina are almost never permitted to listen to, monitor, or record conversations of employees without the consent of at least one of the parties involved or unless they are a party to the conversation.

The Electronic Communications Privacy Act (ECPA) was passed in 1986 and updated the Federal Wiretap Act of 1968, but neither act contemplated the use and interception of communications occurring with the use of computers or other digital and electronic media. Generally speaking, the ECPA applies to emails, telephone conversations, and electronically stored data and protects the wire, spoken, and electronic communications being made, those which are in transit, and those which are stored on computers. The ECPA permits employers to listen to business telephone calls, as mentioned above but does not permit employers to listen to or record private conversations the employee has. However, the interest in ensuring all parties are aware of the recording is so strong that employers routinely play a recording explaining the call may be recorded or monitored before a consumer is connected with an employee. Staying on the phone line to have the conversation means both the employee and the consumer or third-party consent to the monitoring or recording of that conversation.

While employers in other states may install audio recording equipment in places that are used for work, South Carolina’s Interception of Wire, Electronic, or Oral Communication laws prohibit the interception of wire and oral communications and ban employers from listening to or recording conversations to which they are not a party. However, employers may use video recording devices to monitor employees in areas where there is no reasonable expectation of privacy, e.g. on a factory floor or common office space but not in a locker room or break room. The video recordings may not capture sound, only picture.

An employer should be extremely cautious when monitoring or recording any conversations. At a minimum, clear notice should be given to employees of the monitoring and employers should seek legal advice from an experienced employment lawyer in South Carolina before proceeding with audio recording or monitoring.

What Should an Employer in SC Do to Lawfully Search, Monitor, or Surveil Employees?

If an employer in South Carolina wishes to monitor, record, track, surveil, or search employees, the employer must communicate clearly with employees to remind them that the employer has the capability, policies, and procedures to do so. The employer must establish clear policies and procedures about workplace searches and monitoring and must ensure that those tasked with monitoring or searching electronically closely adhere to the procedures and policies without overstepping their bounds or breaching confidentiality.

It is imperative to be aware of the most up-to-date federal and state laws, regulations, and interpretations when monitoring, searching or tracking employees. Experienced employment lawyers at Gignilliat, Savitz & Bettis can help ensure all policies, procedures, and communications comply with the most current laws and regulations related to employer counseling.