We are seeing a need to engage in more intensive monitoring and surveillance of our employees’ tech equipment use. I want to get a new draft policy circulating. What should I include?— Sally E., HR Manager in Sausalito
An electronic usage and monitoring policy is important. More and more often, employers use surveillance to review emails stored on computers, telephone calls made and received by employees, Internet usage, and so forth. By having a written policy in place and communicating it to your staff, you can monitor your employees without violating the very high level of privacy the California Constitution guarantees. A carefully drafted policy will go a long way in resolving whether employees have a reasonable expectation of privacy in the various electronic devices they use daily in the workplace.
Limit Use of Company Systems
An electronic usage and monitoring policy should spell out that employees have no right to privacy in the information transmitted through or stored on the company’s systems and also clearly advise employees that they are to use company systems for business purposes only. This is particularly important with email and Internet use. For example, downloading pornography at work is a remarkably common scenario. It’s important to advise employees in advance that they are prohibited from accessing or downloading porn on a company computer. Then, if an employee does so, your written policy shows that you warned the employee in advance that the activity is unacceptable, and you can act on the misconduct.
We also see problems with copyrighted material. Court decisions have come down against employers, holding them liable for the download of copyrighted material in the workplace. So, to reduce your liability, state in your policy that any software or other copyrighted material downloaded onto a company computer may be used only in ways consistent with the licenses and copyrights of the material’s owners or vendors.
Include Discipline Provisions
Your policy should be very clear about the ramifications and consequences of violating it. State that discipline up to and including termination may occur should the company find out that an employee is using company information and property inappropriately.
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A Current, Broad Policy Is Key
An integral part of drafting and maintaining this type of employment policy is making sure it’s up to date. In representing and advising my clients, I often find that their electronic monitoring policy is three, five, or even 10 years old and doesn’t cover all of the new technology constantly being developed.
I tell my clients to regularly review their electronic usage and monitoring policy—if not annually, then biannually—to make sure they have captured all of the various electronic media that the company has introduced and that employees may be bringing into the workplace. Employers should draft their policy broadly to include all of the media that’s being used and to cover all of the actual surveillance that is going to be conducted, such as email monitoring and video surveillance.
John P. LeCrone, Esq., is a partner at the Los Angeles office of the law firm Davis Wright Tremaine, LLP.