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Privacy expectations: what’s reasonable?

By July 25, 2012July 23rd, 2018Uncategorized

Even though employers have a legal right to monitor employees through electronic or video surveillance, the subject gives a lot of people the creeps. It feels like “Big brother is watching you.” But most employers who practice some form of employee monitoring are not just being nosey.

According to a recent survey of employers who practice some form of employee monitoring, they actually have pretty concrete business reasons for doing so. Some of the most common reasons are:

  1. Concern over litigation: Electronic evidence can prove invaluable if you get investigated by a regulatory agency or end up in court.
  2. Concern over security breaches: Having an “advertised” surveillance system may be a deterrent for that rare employee who is inclined to steal company property. Since the loss of sensitive information can be just as costly (or more) than material loss, employers can install software that automatically recognizes security threats (like typing one of many pre-defined keystrokes). These systems can alert managers or security officers instantly by mail.
  3. Prevention of harassment or a hostile work environment: More than half of the employers surveyed had fired an employee for inappropriate use of email or internet.  The majority of those firings stemmed from viewing, downloading or uploading offensive material on the internet and/or using offensive, inappropriate language in email messages. Monitoring email and internet use should help you to identify and deal with problems in the workforce.
  4. Employee safety: Even employees who aren’t too thrilled about surveillance will appreciate that camera in the parking garage or over distant parking lots.

Monitoring technologies are becoming increasingly affordable, easy to install, and readily available on line or at the local electronics store. With computer software or smart phone apps, employers can track web searches and keystrokes; monitor blogs and social media sites; record full phone calls (see below for caveats regarding state laws), capture text messages, numbers dialed, photos or videos; view an employee’s computer screen or hard drives; even determine the amount of time an employee is away from the computer or sitting idle at the terminal. In addition, GPS devices can pinpoint an employee’s location at any given time. Then there’s those images captured by ever-shrinking video surveillance equipment.

But before you go all “James Bond” on your employees, a few considerations:

  • Federal law permits audio recording of phone conversations as long as one party on the call consents to the recording.  But at least twelve states, including Pennsylvania, require that all parties on the call consent to recording.
  • The National Labor Relations Act prohibits employer surveillance of employee union activity, discussions about unions, or union meetings. In addition, if a union represents employees, an employer is required to bargain with the union before instituting workplace surveillance. This is a good reason to be very careful monitoring social media, as well.
  • You will be hard pressed to justify video surveillance in areas where your employees have a reasonable expectation of privacy. That includes bathrooms, gyms, changing areas and employee lounges.

Best advice: if you decide it’s necessary to monitor employees with any of these techniques, tell them! Tell them how and tell them WHY you are monitoring. The more up front you are, the more your employees will trust you. Start with a clear policy in your employee handbook. Follow up with occasional reminders at meetings or in memos. If you really need to drive the message home, place a sticker on their computer terminal or phone stating that computer and phone use may be monitored.

Since laws have yet to catch up to technologies, the best you can do is establish an expectation among your employees that their privacy at work and on line is legally limited.

One more note: If you are an employee who is concerned about personal privacy, your best option is to limit your personal business and communications to personal computers and phones.