Legal Insider: The Right to Privacy in the Virginia Workplace

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.