Employee monitoring laws in Delaware

Where workers' representatives exist, and in line with national law and practice, inform and consult them before electronic surveillance of how workers act at work is brought in.

No employer, and no agent or representative of an employer, may monitor or otherwise intercept any telephone conversation or transmission, email or transmission, or internet access or usage of or by a Delaware employee unless the employer has given notice in one of two ways set out in (b)(1) and (b)(2).

The first route: provide an electronic notice of the monitoring or intercepting policies or activities to the employee at least once during each day the employee accesses the employer-provided email or internet access services.

The second route: first give the employee a one-time notice of the monitoring or intercepting activity or policies, in writing, in an electronic record or in another electronic form, and have the employee acknowledge it in writing or electronically.

Before any monitoring starts, workers should learn why it is done, when it runs, how it works (methods and techniques) and which data it gathers, and the employer must keep the intrusion on workers' privacy as small as possible.

Workers and their representatives should be told about every data collection process, the rules governing it and their rights.

Covert monitoring should be allowed only where national law permits it or where there are reasonable grounds to suspect a crime or other grave misconduct.

Unless the chapter specifically provides otherwise, no person may intentionally intercept, try to intercept, or procure anyone else to intercept or try to intercept, any wire, oral or electronic communication. For an employer this covers real-time capture of calls, email or messages in transit, keystroke or screen tools that acquire message contents as they are sent, and listening devices, unless an exception (provider, business extension, consent) applies.

A person not acting under color of law may intercept a wire, oral or electronic communication where that person is a party to it or one of the parties has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act against the Constitution or the laws of the United States or any State. Employers commonly obtain the employee's prior consent through a signed monitoring policy; consent must cover the monitoring actually carried out, and state all-party consent laws can still apply.

The prohibition turns on the use of an electronic, mechanical or other device. Telephone or telegraph equipment or facilities, or their components, furnished to the subscriber or user by a provider in the ordinary course of its business and used by the subscriber or user in the ordinary course of its business (or furnished by the subscriber or user to connect to the service and so used), and equipment used by a provider in the ordinary course of its business, are not such a device. An employer's use of its phone system to monitor business calls can fall outside the prohibition where the monitoring is in the ordinary course of business; hearing aids are also excluded.

A person must not intentionally intercept, try to intercept, or procure another to intercept any wire, oral or electronic communication unless an exception applies. The exception open to private persons and businesses, 2402(c)(4), requires that the person is a party or that one party has given prior consent, and that the purpose is not a criminal or tortious act. The same rule applies to telephone, in-person and electronic communications. Penalty: class E felony and a fine of up to 10,000 dollars. 11 Del. C. 1335(a)(4), the violation of privacy offence in the criminal code, separately makes it a class A misdemeanour to intercept without the consent of all parties a message by telephone, telegraph, letter or other private means, including private conversation. The two provisions read differently; this framework records both and does not resolve which governs a given recording.

Telephone or telegraph equipment furnished to a subscriber by a wire or electronic communication service provider in the ordinary course of its business and used by the subscriber in the ordinary course of its business, or furnished by the subscriber for connection to the service and so used, is not an electronic, mechanical or other device, so using it is not an interception. Monitoring outside such equipment or outside the ordinary course of business needs a party's consent.

Monitoring that never stops should be allowed only where it is needed for workplace health and safety or to protect property.

Output from electronic surveillance should never be the sole input when a worker's performance is judged.

Keep personal data only as long as the specific purposes of collection justify, unless a worker asks to stay on a candidate list for a set period, national law requires retention, or the employer or worker needs the data for legal proceedings about an existing or former employment relationship.

Unless subsection (c) applies, no person may intentionally access without authorization a facility through which an electronic communication service is provided, or intentionally exceed an authorization to access it, and thereby obtain, alter or prevent authorized access to a wire or electronic communication while it is in electronic storage in that system. Penalties (2701(b)): for commercial advantage, malicious destruction, private gain or in furtherance of a criminal or tortious act, up to 5 years (10 for a repeat); otherwise up to 1 year (5 for a repeat after a prior conviction). For an employer this reaches logging into an employee's personal email, social media or messaging account, for example with a saved password on a work device, without the employee's authorization.

Subsection (a) does not apply to conduct authorized by the person or entity providing the wire or electronic communications service. An employer that provides its own email or messaging service to employees can authorize access to communications stored on that service; the authorization does not extend to services the employer does not provide, such as an employee's personal webmail.

Subsection (a) does not apply to conduct authorized by a user of the service with respect to a communication of, or intended for, that user. Access to an employee's stored messages with that employee's authorization is outside the offense; access to a third party's messages needs that user's authorization or another exception.

5.1 Lawful, fair and employment-related processing. Handle workers' data lawfully and fairly, and solely for reasons that bear directly on the person's job.

Employers should not collect data on a worker's sex life, political, religious or other beliefs, or criminal convictions, except in rare cases where national law permits it and the information bears directly on a decision about the job.

Employers should not collect data on a worker's membership of a workers' organization or trade union activities unless the law or a collective agreement requires or permits it.