Workplace Privacy Laws in Massachusetts: What Employers Can and Cannot Monitor

By a Massachusetts Business Attorney · Employment Law

If you are a Massachusetts employer, you want to monitor your employees. Maybe you’re concerned about productivity, maybe you want to screen for background issues, maybe you just want to know what’s being said about the company online. But Massachusetts has some of the strongest employee privacy protections in the country. And I’ve been asked this a lot by employers who didn’t realize there were legal limits on what they can do.

Here’s what I tell clients: you have legitimate business interests in protecting your company, managing performance, and ensuring security. But you also have legal obligations to respect employee privacy. Getting the balance right requires understanding what Massachusetts law permits and what it prohibits.

Massachusetts Constitutional Right to Privacy

M.G.L. c. 214, § 1B establishes a constitutional right to privacy in Massachusetts. This is broader than federal privacy protections, and courts have interpreted it to protect employees from unreasonable intrusion into private matters.

The right to privacy doesn’t mean employees have absolute privacy at work. Courts apply a balancing test: Is there a reasonable expectation of privacy? If yes, does the employer’s interest in monitoring outweigh the employee’s privacy interest?

On company equipment, doing company work, during company time, your monitoring interest is stronger. But Massachusetts courts still require that monitoring be reasonable and not excessively intrusive.

Electronic Monitoring and Notice Requirements

M.G.L. c. 149, § 185B requires employers to provide notice before monitoring electronic communications. Here’s what the law requires:

1. Clear, conspicuous written notice before monitoring begins.

2. Notice must inform employees that their electronic communications (email, internet use, instant messages) may be monitored or recorded.

3. Notice must be given to the employee whose communications will be monitored.

4. Notice should identify what systems will be monitored (company email, company network, etc.).

Without proper notice, electronic monitoring is not just a liability issue, it’s a criminal violation under M.G.L. c. 272, § 99.

Here’s something I see employers get wrong all the time: they assume monitoring is okay because employees use company equipment. Wrong. Notice is mandatory, even on company systems.

What you can monitor with proper notice:

1. Work email sent on company systems.

2. Internet browsing on company networks.

3. Company instant messaging platforms.

What you cannot monitor:

1. Personal email accounts accessed through company systems (even if on company time).

2. Social media accessed through company networks (without very careful restrictions and notice).

3. Employee personal devices connected to company wifi (without exceptional circumstances and explicit consent).

4. Voicemail or personal communications not related to business.

Social Media and Off-Duty Conduct

Massachusetts law protects employees’ off-duty activity and off-duty expression. M.G.L. c. 149, § 24L prohibits employers from requiring employees to disclose social media passwords or threatening adverse employment action based on social media activity.

You cannot:

1. Ask for passwords to personal social media accounts.

2. Threaten or require employees to add you as a friend or follower.

3. Take adverse action (termination, discipline, demotion) based on legal off-duty conduct or expression.

4. Discipline employees for political speech, union activity, or other protected expression on social media.

You can:

1. Monitor public posts and public information the employee has posted.

2. Take action if the employee’s conduct violates law or company policy (e.g., posting confidential business information, threatening behavior).

3. Investigate if there’s a credible allegation that an employee engaged in illegal conduct and you need to defend the company.

The key distinction: monitor what’s publicly visible, but don’t intrude. And don’t take action unless the conduct violates law or core business interests, not merely because you disapprove.

CORI Checks and Background Screening

M.G.L. c. 151B, § 4(9) allows CORI (Criminal Offender Record Information) checks, but with significant restrictions. CORI checks are only permitted for certain positions where the employer can demonstrate a direct relationship between the criminal conviction and the job.

Here’s what you must do:

1. Provide written notice before obtaining a CORI check or background report.

2. Obtain written consent from the candidate or employee.

3. Individualized assessment: If the check reveals a conviction, you cannot automatically disqualify. You must consider:

4. Nature and seriousness of the crime
5. Time elapsed since conviction
6. Relationship to the job

7. Rehabilitative efforts

8. Provide a copy of any disqualifying information and a chance to respond before making an adverse decision.

Certain convictions (like sex offenses involving minors) may be more disqualifying for positions involving children. But for many positions, a single past conviction doesn’t justify disqualification.

Drug Testing Limitations

Drug testing is heavily regulated under Massachusetts law. M.G.L. c. 149, § 19B restricts when you can test:

1. Pre-employment testing is generally allowed, but only after a conditional job offer.

2. Reasonable suspicion testing is allowed if you have objective evidence of impairment.

3. Post-accident testing is allowed only in safety-sensitive positions.

4. Random testing is generally prohibited, except in safety-sensitive positions and with union agreement.

You cannot test based on:

1. Speculation or unsubstantiated rumor.

2. Off-duty marijuana use in states where it’s legal (including Massachusetts).

3. Prescribed medications unless there’s impairment at work.

Notice and consent requirements apply. Testing must be conducted by certified labs and results must be reliable.

The Bottom Line

Massachusetts takes employee privacy seriously, and for good reason. Your employees are entitled to a private life outside of work, reasonable privacy expectations on personal devices, and protection from excessive workplace monitoring.

But you also have legitimate business interests. You can monitor company equipment, company communications, and company systems (with proper notice). You can conduct background checks and drug tests (with proper procedures). You can investigate public conduct that affects your business.

The key is doing these things correctly: with notice, with consent, with reason, and without overreach. If you’re planning to implement monitoring, conduct background checks, or test employees, consult with an employment attorney first.

Call my office at 978-273-8337 or visit gaudetlawoffice.com to discuss your specific situation. I’ll help you implement compliant policies that protect your business without crossing the line.

For more information on Massachusetts employment privacy, visit the Office of the Massachusetts Attorney General (opens in new tab).

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ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.