Q&A: San Diego State’s Daniel Eaton

‘Work From Home Is Still Work and Subject to Work Rules’

By Victor Bradley

At the height of the COVID-19 pandemic in May, Gallup found that 52% of employed U.S. adults worked from home full-time, versus fewer than 6% as recently as 2017.

As such, employers increasingly have turned to technology to monitor and analyze employee behavior. These include AI-capable systems, which they claim to use big data-based insights to identify — even predict — problematic employee behaviors.

But Daniel E. Eaton, a lecturer in employment law and business ethics at San Diego State University’s Fowler College of Business, told Digital Privacy News that federal privacy rights for workers were limited in general, leaving this new frontier essentially unregulated.

Do employees have any privacy rights in the workplace?

Federal law confers only limited privacy rights in the workplace.

One source of such rights is the Omnibus Crime Control and Safe Streets Act of 1968.

That law limits employers monitoring work communications to monitoring in the course of business — unless the employee acknowledges in writing that the employer may monitor their communications and consents to it.

That acknowledgment and consent is typically obtained at the outset of the employment relationship as part of other onboarding documents.

How do these rights vary across the country?

Regardless of the source of the right, the key question is did the employer violate the employee’s reasonable expectation of privacy.

An employee, generally, cannot claim a reasonable expectation of privacy in areas that he or she has been advised are subject to search or monitoring by their employer.

An employer may limit the scope of the employee’s right to privacy in a particular context through written policies.

Have big data, AI and machine learning — for instance — changed the nature of employment and workers’ rights law?

AI is a relatively new feature of the workplace.

I expect state and federal courts, including the U.S. Supreme Court, and state and federal lawmakers and regulators to address the issue as employers learn more about their employees in ways and in areas the average employee may not reasonably expect.

Existing federal and state law precludes employers from collecting and using employee-genetic information for any purpose.

Disability and discrimination laws may impose limits on how diagnostic testing and digital observation may be used to make employment-related decisions.

My expectation is that the sophisticated artificial intelligence of the brave new workplace will slip the constraints of existing laws and rules. New tools may soon be required.

Can an employee sue for wrongful termination if it’s solely on behavioral patterns from AI-machine detection?

An employee termination resulting from a behavioral pattern tied directly to a physical or mental disability may give rise to a claim under state or federal disability discrimination laws.

But that is true whether the behavior is detected by artificial intelligence or by more conventional methods of observation.

How does this technology intersect with “termination for cause”?

The vast majority of private-sector employment is at will, meaning the employment may be terminated for good cause, no cause or any cause that does not offend fundamental public policy, such as the laws prohibiting discrimination based on race or other protected classes.

“Cause” may be defined in a variety of ways, by statute or contract where employment is not at will.

In California, employment for a specified period of time, as opposed to at will, may be terminated for “any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it.”

Written contracts generally include additional and broader bases for terminating employment.

Artificial intelligence tools may make it easier for employers to track movement and (provide) other data that may substantiate substantial performance deficiencies or other causes for termination.

How does working from home factor into this?

Work from home is still work and subject to work rules.

But an employer is on shakiest legal ground when it takes action against an employee based on private conduct, committed offsite, that is unrelated to work, however the employer learns of that conduct.

What about when an employee is using their personal equipment?

An employer generally has no right to monitor an employee’s personal equipment or accounts.

This may extend even to information generated on an employee’s personal accounts while using company-issued equipment.

In 2010, the New Jersey Supreme Court unanimously ruled that an employer had no right to view a communication between an employee and her employer sent from a company-issued laptop, but using her personal, password-protected Yahoo email account.

She had a reasonable expectation of privacy in those communications.

Would inefficient work habits, only discovered through enhanced monitoring, be cause for termination, where termination without cause is outlawed either through contract or statute?

The parties are free to define “cause” any way they like.

Inefficient work habits could constitute cause for termination, even as an employee terminated on that basis could qualify for unemployment benefits.

Victor Bradley is a writer in Clarksville, Tenn.

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