What legal right do bosses have to monitor their workers’ communications, especially when sent through new technologies? The answer (as usual) is: It depends.
Yesterday’s Advisor briefed you on the subject of electronic surveillance of your employees. We summarized the pros and cons of looking at your employees’ e-mails, instant messages (IMs), and other communications, both in terms of productivity and morale.
But there’s another whole dimension to consider: The legalities involved.
A briefing on that part of the subject came from attorneys Anthony J. Oncidi and Christopher Wolf, partners in the national law firm of Proskauer Rose, LLP, as they addressed a SHRM conference on workplace privacy. Much of their presentation involved the issues raised by new technologies and communications sent through these media, and also blogging—the keeping of an online diary for all to see.
The attorneys noted that there is no generalized right to privacy in the United States, but there is “an incomplete and often confusing patchwork” of laws, both federal and state. It is possible, however, to draw some generalizations.
You want to monitor e-mail and Internet use, but how far can you go without violating the law (and destroying morale)? Learn the practical ins and outs at BLR’s September 2 audio conference Electronic Monitoring: Effectively–and Legally–Keeping Tabs on Your Employees. Can’t attend? Preorder the CD.Satisfaction assured. Click for details
First, telephone calls (including voicemail) and e-mails are generally protected from monitoring by the Electronic Communications Privacy Act of 1986 (ECPA). However, employers can listen in to calls or check e-mails if:
▪ The employer supplies the system monitored, but not if it’s an e-mail that travels via a third-party carrier, e.g. AOL or Yahoo.
▪ The employer has permission from one party to monitor the communication. (Some states, including California and Florida, require all parties involved to allow it.)
▪ The monitoring is part of normal business. That’s what’s behind the now-famous phrase, “monitoring for employee training or quality assurance purposes.”
▪ Monitoring stops as soon as the employer realizes that it is a personal communication. (The time spent may still be logged.)
▪ The employer has given workers advance notice that calls or e-mails may be monitored, usually through a policy published in the workplace.
This last is key because privacy protections traditionally depend on whether a person has a “reasonable expectation of privacy” in their communication. Using the boss’s equipment, on the boss’s time, and notified in advance that monitoring may happen, it’s pretty hard for workers to later maintain that such an expectation existed.
Blogging
The harm to employers from blogging comes when the authors, often writing anonymously but with their company’s identity revealed through the blog’s URL, reveal confidential business information, libel company personnel, or write comments that despoil a company’s image.
The answer, say the attorneys, is to make a policy now regarding blogging. These elements should be part of it:
▪ Writers must identify themselves.
▪ Include a disclaimer that they are not speaking for the company.
▪ Ban harassing, discriminatory, or derogatory comments about anyone.
Latest joke? Cartoon? Pornographic pix? These days, you’ve got to monitor employee Internet and e-mail usage. BLR’s special audio September 2 audio conference tells how to do so legally. Satisfaction is assured. Can’t attend? Preorder the CD. Click for info
Your Specific Questions Answered
The above only scratches the surface of what you need to know and do if you conduct monitoring. For a much fuller understanding, and answers to your specific questions, our editors recommend that you attend a special September 2 BLR audio conference on the subject, titled, Electronic Monitoring in the Workplace: How to Keep Tabs on YourEmployees Without Breaking the Law.
To teach this vital subject, we found a special presenter. Maryland attorney W. Lawrence Wescott II is not only a top-notch lawyer, he previously was employed as a database project manager for a healthcare information provider and as the manager of information services for a manufacturer. And he currently produces the Electronic Discovery Blog, consulted regularly by other attorneys and managers who need to deal with these issues.
As we said, Wescott will take your e-mailed or phoned-in questions in real time. And as usual, you can train as many people who can fit around a conference phone for one low fee, and your satisfaction is assured or you get a full refund. Can’t attend on September 2? Preorder the conference CD.
If you’re doing business in the 21st century (and you are), this is a can’t-miss session. For further information, to register, or to preorder the CD, simply go here.