Employers are getting more and more worried about issues like workplace violence, identity and property theft, decreased productivity, and accidents and injuries sustained while working making a need of monitoring work places. Employers must take adequate measures to reduce these risks in light of the rising costs of litigation. As a result, many employers increasingly keep an eye on their workers while they are at work to avoid accidents, inappropriate behavior, and other sorts of loss.
Companies must combine their economic goals with the reasonable expectations of privacy of their employees while taking precautions against these hazards. The availability of technology, which enables employers to track all employee email, Internet, and telephone use without the employees even being aware that they are being watched, magnifies this difficulty.
Role of HR
By law, employers are required to ensure that their workers have a safe workplace and to take reasonable precautions to safeguard their company’s assets. Employers must use sound business judgment and legitimate business interests when implementing strategies to achieve these varied goals.
In order to safeguard employees while lowering the risk of employer liability, it is the responsibility of the human resource professional to encourage the adoption of acceptable and practical workplace privacy management policies.
The HR function plays a critical role in the creation and application of monitoring systems to address the ongoing issues of theft, security breaches, and other employee misconduct. It collaborates with specialists in legal, risk management, and security.
HR should make sure, in particular, that the monitoring is narrowly focused, that it is necessary for legitimate business reasons, and that employees realize they have no reasonable expectation of privacy while using employer-provided tools like computer networks, phones, and pagers. Additionally, HR should work with the employer to ensure that monitoring systems do not contravene collective bargaining agreements or foster a culture of surveillance during a union organizing drive.
Employers should also work toward a corporate-wide solution that doesn’t undermine morale and is transparent and easy for workers to grasp, and they should involve HR and legal experts from the outset of evaluating and ultimately implementing workplace surveillance.
Last but not least, HR plays a crucial role in distributing the employer’s policies and procedures for workplace surveillance and preserving employee privacy, including the justification for the surveillance and the specifics of how it will be carried out. To ensure the trust and cooperation of the employees in this process, HR’s participation is essential.
Legal Limitations on Monitoring at Work
A number of federal and state constitutional clauses and legislation govern workplace monitoring, including when employees have a right to privacy and whether or not they must be informed that they are being watched. The best strategy is to disclose surveillance, from a legal standpoint. The aspect that frequently serves as the foundation for common law privacy invasion claims is the reasonable expectation of privacy, which is removed when employees are informed that they will be observed.
Although the legal foundation for the privacy claim varies by jurisdiction, courts that have addressed the issue often conduct a fact-specific review. They consider the employee’s reasonable expectation of privacy as well as the validity of the employer’s commercial reasons for conducting the monitoring.
The fact that a court’s evaluation frequently considers how legitimate an employee’s expectation of privacy is provides another justification for disclosing monitoring efforts. Employers can lower employee expectations of privacy, strengthen their legal position, and have a less negative effect on employee morale by alerting staff members that their communications are not secure or that their activities will be watched.
State and federal laws
The Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. Section 2511 et seq.) and common-law privacy safeguards are the two main legal constraints on workplace monitoring. The only federal legislation that explicitly controls the examination of electronic communications in the workplace is the ECPA.
It was added by Congress to the federal Wiretap Act in 1986. The ECPA expanded such limits to cover electronic communications like e-mail, whereas the Wiretap Act only applied to the interception and monitoring of oral and wire conversations.
The purposeful interception of an employee’s oral, wire, or electronic conversations by an employer would seem to be prohibited by the ECPA at first look. The ECPA does, however, contain a number of exceptions to this rule, two of which are particularly significant to employers. The first is referred to as the “business purpose exception,” and it allows employers to eavesdrop on oral and electronic conversations as long as they can demonstrate a valid business need.
The second is the permission exception, which permits employers to eavesdrop on employee communications if they have the consent of those being monitored. The permission exception does not only apply to business communications, which makes it possible for a firm to monitor personal electronic communications if it can demonstrate employee consent, which is a crucial and frequently ignored distinction between the two exceptions.
In addition to these two exclusions, the ECPA has a flaw that could reduce employer responsibility for specific monitoring techniques. The term “electronic communications” as used in the legislation refers specifically to their transmission and excludes their storage on computers or other electronic devices. Therefore, courts have made a distinction between examining emails while they are in storage vs watching electronic communications like email messages while they are being transmitted. The process of seeing saved emails is comparable to looking through an employee’s paperwork and records. Monitoring electronic communications after they have been transmitted is not a violation of the ECPA, according to several courts that have dealt with this subject.
The Stored Communications Act (SCA), a component of the ECPA, forbids knowingly disclosing the contents of an electronic communication by any organization offering electronic communication services to the general public. It only applies to communications where the worker reasonably expected privacy. The SCA probably won’t apply if an employer makes it plain that particular conversations aren’t protected.
Employee monitoring is only subject to the ECPA’s minimal prohibitions; individual states are free to establish stricter regulations, and many have. In Connecticut, for example, companies who monitor must give employees written notice in advance that details the precise types or techniques of monitoring.
A right to privacy is also expressly guaranteed by a number of state constitutions, including those of California, Florida, Louisiana, and South Carolina. Employers in states where the right to privacy is explicitly guaranteed in the state constitution would be advised to take extra measures to lower employees’ privacy expectations with regard to electronic information and communication used at work.
Common-law allegations
Employees have used common-law privacy grounds to contest employer monitoring in addition to the ECPA and different state statutes that regulate it. These claims are supported by previous court decisions rather than statutory rights. It is necessary for the employee to claim a right to privacy with regard to the data being monitored in order to succeed on a common-law claim of invasion of privacy. Even when they have the best of intentions, managers and supervisors should be reminded not to divulge personal information about their employees to the staff and coworkers.
Concerns with labor relations
Companies that are unionized experience more difficulties. According to the National Labor Relations Board, any type of workplace video monitoring is a requirement of employment that normally requires collective bargaining and union approval prior to installation. When the use of surveillance cameras is specifically mentioned and waived in the management rights section or another clause of the collective bargaining agreement, there is an exemption. Even in that case, the union representative’s cooperation and buy-in will be crucial to the success of the program.
Even non-unionized companies may have to deal with the labor board on this matter if they decide to deploy a surveillance system in the middle of a union-organizing effort. Covert surveillance without negotiation can cause a unionized employer serious problems. The employer will probably face a charge of unfair labor practice unless it can demonstrate that property damage, break-ins, or other security difficulties have worsened as a result of the union-organizing campaign.
Monitoring voicemail and phone calls
Live calls and recorded voice mails cannot be intercepted, according to the federal Wiretap Act. However, if they do so in the regular course of business, employers are permitted to legally monitor spoken telephone communications. Due to their specific interest in guaranteeing quality control, employers who operate telemarketing or customer service activities should pay particular attention to this exception.
Protection of trade secrets and assuring adherence to noncompete agreements are two more justifiable business justifications for monitoring calls. The best approach is to get the employee’s prior written consent in any situation when the employer feels a pressing business need to monitor calls.
According to the ECPA, an employer is required to stop listening as soon as they determine that a phone discussion is personal in character. Unless the employee expressly agrees to allow unrestricted monitoring of both personal and work calls, then employee agreement will likely not be enough to protect the employer.
Employers may have more freedom to listen in on employee calls made on phones that are solely to be used for business purposes. For instance, a corporation could utilize equipment known as a pen register to record the phone numbers and the duration of calls but not the content of particular conversations when it instructs staff that the main reception line cannot be held up with personal calls. Employers should make an effort to specifically limit any invasion of employee privacy to the goal it wishes to accomplish. Utilizing less intrusive technology can help achieve that objective.
The method of workplace communication that is most likely to be impacted by local legal regulations is telephone monitoring. For instance, California law mandates that parties to a discussion be alerted that the conversation is being recorded or could be monitored—either by a recorded message or a beep. A number of states, including Maryland, New Hampshire, and Pennsylvania, demand that all parties to a telephone conversation give their permission before it can be recorded.
Keeping an eye on text and email communications
It goes without saying that using electronic communications in the office has its benefits. The most effective way to communicate within a company and with clients is frequently through electronic media. Employers can track employee output, quality, and efficiency by maintaining an electronic information network, but employee use of voicemail, the Internet, and e-mail has resulted in a wide range of issues at work.
For instance, a worker’s personal usage of email and the Internet during work hours may have an impact on the productivity and profitability of the employer. However, even more critically, employee abuse of electronic communication tools can expose businesses to legal risk and data security breaches. Employee abuse of computerized communications can result in claims against employers for sexual harassment, discrimination, defamation, copyright infringement, and other inappropriate actions. Employers must also be concerned with safeguarding proprietary information and trade secrets.
When using electronic media, employers must take employees’ expectations of privacy into account. Organizations must be aware of the discoverability of electronic communications in litigation involving any of these issues, although employees who have sued their employers for invasion of privacy based on e-mail monitoring have often not had much success.
Depending on the nature of the communication, specific jurisdictions may extend privacy protection to employees’ personal usage of business email systems. In Stengart v. Loving Care Agency Inc., 990 A.2d 650 (2010), the New Jersey Supreme Court determined that a worker could reasonably anticipate that email correspondence with her lawyer through a personal, password-protected web account would remain private, even though she used a company laptop to send and receive those messages.
The court determined that her employer’s legal counsel had broken the rules of professional conduct by reading her emails and that using the business computer did not render the attorney-client privilege no longer protected. The court further declared that no policy pertaining to the employer’s right to access and read personal communications made through work computers could undermine the expectation of privacy of the employee.
Tracking internet usage
The ECPA’s limits on electronic monitoring, according to some observers, do not apply to Internet use because browsing webpages does not constitute “communication.” The safest course of action, however, is for employers to create and enforce a clear policy governing acceptable Internet use at work, specifically reserving the right to monitor such use without additional notice.
Companies should include forbidden Internet use in their sexual harassment and equal employment opportunity policies in addition to this separate monitoring policy. In addition, companies have access to a wide range of filtering and blocking tools that are intended to limit access to unsuitable Internet sources.
Information technology employees are now required by several states to notify law authorities when they find child pornographic material on a workplace computer.
A number of states have passed laws. In a 2005 New Jersey case, the state appeal court ruled that an employer had a duty to look into an employee’s activities and take “prompt and effective measures to halt the illegal activity” if they were aware that the person was using a work computer to browse child pornography. According to the court, an employer might be held accountable to the victims for failing to notify law police when employees visited websites that might have included child pornography.
Video surveillance and observation
Employers frequently deploy video surveillance to keep an eye on workers’ behavior at work. To reduce employee malfeasance, several firms deploy video surveillance. If a crime were to occur at the jobsite, video surveillance can also offer proof of it. Employers must take into account the state regulations for the state where the surveillance is taking place, whether the space is public or private, whether sound is being recorded in addition to visual monitoring, and whether the camera is in plain sight or hidden. Where employees have a right to privacy, employers shouldn’t conduct video monitoring.
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