This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.
By John Berry
An interesting topic in Virginia employment law is an employee’s right to privacy in the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and courts.
In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace. One of the biggest concerns that we run across in representing employees in wrongful termination cases involves an employee’s use or alleged misuse of an employer’s email, computers or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is its examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Trespass law.
Email and Internet Monitoring of Employees
Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed. Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.
Telephone and Voice Mail Monitoring of Employees
Some employers monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.
Security Camera Monitoring of Employees
With the widespread use and availability of small wireless cameras, some employers have attempted to monitor their employees in this manner. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.
Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.
If you need assistance with a federal retirement or an employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
Top state officials are coming to Arlington tomorrow for an unspecified “economic development announcement.” “The Honorable Glenn Youngkin, Governor of the Commonwealth of Virginia, will join Arlington Economic Development and…
More many in Arlington, the Friday after Thanksgiving is an off day, often spent with family and friends (or braving the malls). For others — including those with jobs that…
Robbery at Pentagon City Mall — “1000 block of S. Hayes Street. At approximately 3:39 p.m. on November 22, police were dispatched to the report of a larceny just occurred….
An Arlington man is behind bars after police say he shot someone in the Green Valley neighborhood. The shooting happened early Sunday morning following what police described as a dispute…
The Alternative Christmas Market is back! At First Presbyterian Church Arlington in Ballston, located at 601 N. Vermont Street, Arlington VA 22203, on Sunday, December 4th from 9:30am to 1:00pm. Parking available.
Vendors and products this year include: 10,000 Villages, Olive Oil Ministry, African Team Ministries, Community Coalition for Haiti, Heifer, African Market Baskets, Café Justo, Thistle Farms, Southwest Indian Foundation, and Together We Bake.
Buy gifts for everyone on your list, and support these great organizations, artisans, and global neighbors. See you there!
(This Community Post was written by the [Arlington Chorale](http://arlingtonchorale.org/) and underwritten by [Embracing Arlington Arts](https://embracing-arlington-arts.org/).
Since the Arlington Chorale returned to in-person singing one year ago, local amateur singers have been signing up for auditions in unprecedented numbers. “Thirty of our current members joined within the last year,” says Ingrid Lestrud, Artistic Director. “Many of them have recently moved to Arlington, and they want to join a community. Chorale members get to sing beautiful music and meet a diverse group of people who love singing as much as they do!”
The singers are busy preparing their December 10 concert, Christmas Joy! Featuring John Rutter ‘s Magnificat and Kirke Mechem’s _Seven Joys of Christmas_ , audiences will hear familiar Christmas carols, as well as beautiful music with hints of tango, musical theatre, and jazz. The singers will be accompanied by a chamber orchestra of local professional players, and the concert will highlight the talents of soprano Helena Colindres. Members of the Chorale’s outreach group, the Youth Community Council, and select singers from the Chorale will be singing Christmas carols outside the venue as audience members arrive. After the performance, everyone is invited to join the singers downstairs for a reception with light refreshments. It’s a special community event you won’t want to miss! Tickets are $20 for adults and free for children under 12 available here. Please join the Arlington Chorale on **Saturday, December 10 at 5:00 PM at Westover Baptist Church!**
NCE’s Holiday Concert will bring the finest classical masterpieces and holiday favorites together for the whole family. The festivities begin with Leroy Anderson’s classic “Sleigh Ride” and “Chanukkah Festival”, music from the Nutcracker and by J.S. Bach.
Outstanding Young Artist