Do you know what your employees are doing every minute they are supposed to be working? Do you have a right to know? Could you be obligated to know? Perhaps more importantly, what are you entitled or obligated to know, when can or must you know it, when and how can or must you get that information, and finally, why are –or aren’t –you entitled or obligated to know what your employees are up to when they’re on your watch. Read on for some insights…
(image from peoplematters.in)
I usually encounter people in 2 camps on this issue. In the first camp, the response is, “Of course I can monitor my employees. They’re on my premises and working on my time.” In the second camp are those that say, “Wait. You can’t do that. Aren’t we all entitled to our privacy?” So who’s right? Actually both camps are right–and not so right. What??? How can both be right and not-so-right at the same time? Generally speaking employers can monitor certain employee activities, and generally speaking all of us have privacy rights. Nobody’s rights, however are absolute. So employers can monitor employee activity subject to certain limitations, and individuals have privacy rights subject to certain limitations. OK, so what are those limitations?
Employers can monitor employees in work areas, while they are performing their work–especially when they are using employer resources to do so. For example, when you provide your employee a company-issued computer, along with access to company email, internet access and the company’s social media account, you may monitor pretty much anything that an employee does in that area. Court cases in pretty much all states, including California (surprise!) affirm this point. The reason would probably make sense to most people. The employee is using company resources and property, and most often doing so on company time (i.e. when the employee is supposed to be working).
In fact, not only can you monitor use of your company’s resources, you should –and in some cases may have to do so. When and why might you have to monitor employees’ activities? Regardless of the nature of your business, your employees represent your company. Your employees’ actions and statements can reflect well or poorly on your company. Your employees in some way interact with other businesses or with the public in general and sometimes, either intentionally or inadvertently, their actions or inactions can lead to others getting hurt. If you are not aware of what your employees are doing, you cannot ensure that they are acting in the best interest of your company or the people it is supposed to be serving–and that can expose your company to legal liability. Often your failure to monitor what your employees are doing (or not doing) will be cited in lawsuits alleging that your company failed to take reasonable steps to know what was going on and to prevent the alleged injury or loss. Some examples: employees sending emails that other employees (or customers) belonging to certain protected classes might find offensive (i.e. sexually, racially or ethnically harassing or discriminatory emails); an employee’s social media post purports to make a statement on behalf of your company that divulges confidential or proprietary information. Some employers also use surveillance cameras where security or potential theft are a concern.
On the flip side, when might your monitoring activity cross the line and become privacy invasion? When can’t or shouldn’t you monitor employees? Can you monitor employees’ use of personal email accounts that they access through your company server? If your policy allows it and you clearly let employees know that once they use your system they have no reasonable expectation of privacy, then usually, yes. One possible exception: an employee’s use of personal email to communicate with an attorney. Click here to read a New Jersey case, which addresses that very issue. What about video surveillance? It is generally allowed in work areas. Not all locations in your workplace are work areas though. For example, video cameras or other recording devices in rest rooms, locker rooms, changing rooms. break rooms or cafeterias are not work areas and are a good way to get you sued–and you will probably lose. Can you record conversations? That depends on state laws. Some state laws require that all parties to the conversation consent. Some require that only one of the parties consent. Check the laws in all states where you employ people before you record conversations.
If you do choose to monitor employee activity, here are a few recommendations:
- If you are not going to monitor everyone, take all reasonable steps to avoid even the appearance of targeting one or more protected classes. Don’t target employees based on age, gender, religion, or disability or any other classes protected under applicable state or local laws.
- Make sure that even your seemingly neutral monitoring policies do not adversely impact a disproportionate number of employees from one or more classes protected by anti-discrimination laws. Some policies on their face are directed either at all employees or a group not specifically chosen on the basis of protected characteristics, but may still disproportionately affect those in protected classes. Under Title VII, the ADEA, and the ADA to name a few federal laws, this too would be discrimination — and therefore illegal.
- Keep all types of monitoring devices out of non-work areas (especially those where people may disrobe such as a bathroom or locker room).
- Whatever policies you do adopt apply them consistently as circumstances will allow. If you are selective in your application, you may open yourself up to allegations of discrimination.
- Get legal advice from your friendly, competent employee counsel before you devise and implement your practices, making sure that you properly address your specific needs and circumstances.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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