Technology has made monitoring employees easier than ever now that almost every mode of communication has gone digital. As many as three out of four companies reported that they monitored their employees to some extent, with the most commonly monitored activities being internet use and email.
Employers understandably don’t want employees surfing inappropriate websites, trading stocks, or playing poker while on the clock. More important to many companies, however, is that employees aren’t engaging in corporate espionage, selling trade secrets, or using workplace computers to harass other coworkers.
As an employer, the law generally allows you to monitor your employees’ communications while on the job and within reason. The major exception to this is if the monitoring runs afoul of an employee’s right to privacy. Each form of monitoring has its own rules and exceptions, so it’s important to know how the law treats each type of monitoring.
Monitoring Internet Use
Monitoring general internet use is probably the least restricted form of monitoring. Employers are allowed almost without exception to keep track of internet sites that their employees visit. Employees generally have no right to privacy regarding their viewing history, and many companies install software that either severely limits what websites may be viewed or how much time employees can spend on non-approved sites.
Emails are the modern form of letters and correspondence and accordingly have more protection based on precedent than something like general internet viewing habits. However, courts have generally sided with employers and allowed them to read the email of their employees unless the employer has indicated that emails will be private or confidential. This policy can be communicated to employees explicitly, by telling employees that emails are confidential, or indirectly, by giving employees unique passwords that only they know.
To be careful, as an employer you should try to always have an established reason for viewing employee emails, such as a policy justification or a record of an incident which prompted the monitoring. Courts have rarely denied an employer the right to read employee email if there was a justification in place before the employer read the employee’s email (such as reports of harassment).
Monitoring Phone Calls
Phone calls are the most protected form of employee communication and employers should be especially careful when monitoring phone calls. Almost all states allow an employer to monitor or record employee conversations with customers for quality assurance purposes. Although only a few states require that you announce that the call is being recorded, it is a good business practice to let customers know they are being recorded.
The major exception to monitoring rules for phone calls is when the employee makes a personal call. Although federal law allows employers to monitor calls without warning or announcement, once the employer realizes that it is a personal call, the employer must stop monitoring the call. The only caveat to this is that if the employee has explicitly been told not to make personal calls from the particular phone, then the employer may be allowed to continue monitoring the call.
Monitoring Voice Mail
Voice mail is a gray area of the law and it is likely that the rules in place for other forms of monitoring apply here. Employers are likely able to access an employee’s voice mail, provided that the employer hasn’t given employees the impression that their voice mail is private. The best practice is to have a good work-related justification established before monitoring an employee’s voice mail.
How to Keep Your Monitoring Legal
Employers generally have access to employee communications while on the job, but there are a few steps to always take before monitoring employee communications:
• Establish a Policy: Don’t let there be any confusion about whether a particular form of communication will be monitored or not. Create a clear policy that outlines what forms of communications are monitored, why they are monitored and under what circumstances they are monitored. To be extra careful, consider having employees sign a consent form acknowledging that they understand and agree that their workplace communications will be monitored.
• Have a Justification for Monitoring: Courts are far less likely to find you liable for violating an employee’s right to privacy if you had a good, work-related reason for monitoring communications. If you’ve had past experiences that prompted monitoring or have received complaints, these all qualify as perfectly good justifications for monitoring employee communications.
• Be Reasonable: Be smart about how and when you monitor employee communications. If you create a draconian atmosphere of surveillance or implement a system that seems excessive given the potential problems, a court is much more likely to find that you are violating employee privacy rights. Ensure that your monitoring system is proportional to any potential problems because overreaching is a good way to ensure a lawsuit from a disgruntled employee.
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