I Spy [an Employee on Facebook]
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As discussed in my previous blog, the electronic age provides ample opportunities for publishing mistakes. Increased technology also provides additional opportunities to monitor employees to record their missteps. When contemplating employee monitoring, employers must address three questions:
1) What do you have the technical ability to monitor?
2) What may be legally monitored?
3) What should you monitor?
Ability is Limitless:
With technology, employers have the ability to monitor everything but employees’ thoughts. With the full spectrum of gadgets, an employer can tell how fast an employee drove to work, with whom they communicated, what information they relayed, and where they went. Video and audio technologies provide the ability to track every word and facial expression made in the office. Perhaps employees' thoughts can be monitored.
Technology has a role in the workplace. Monitoring employees is on the rise. One study indicates that:
Two out of three employers review internet usage of employees;
More than fifty percent of employers use website blocking;
Emails and/or phone reviews occur at more than 25% of workplaces.
Rules are not easily defined. Before you take action: talk with your HR or internet lawyer; have a specific plan; and follow that plan.
Examples of restrictions to employee monitoring include the Electronic Communication Privacy Act of 1986, which bars intentional interception of wire, oral, or electronic communication, or unauthorized access of stored information (anyone who receives email from me sees a disclaimer citing the statute).
The Fourth Amendment to the United States Constitution, which guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” has been applied to monitoring by government employers.
Exceptions to privacy laws may allow employers to monitor business-related communications under cerrtain circumstances. One case held that an employee did not have a reasonable expectation of privacy regarding information stored on a work computer in a folder labeled “personal” and password protected. Another case found no reasonable expectation of privacy in business email, even when the company stated that emails were not monitored. Once the limits are ascertained, the questions is “should you monitor?”
Monitoring Employees has Pitfalls:
The benefits of monitoring employees are easy to ascertain. Employers get better data to determine if employees are using time appropriately and if they are following the rules. Employers may also determine if employees are sending illicit photographs or messages by tweet or email.
The downside of monitoring is also easy to ascertain. Monitoring can be expensive. Employee morale may be damaged by feeling that trust is breached, and improper monitoring may lead to liability or PR gaffes.
If you decide to use technology to monitor or limit employees, the following steps may be helpful:
- Develop a computer policy for:
- Permissible usage (no personal, no personal use during working hours, no restrictions, etc.).
- Email usage (no personal emails, no profanity, no personal emails during company hours, etc.).
- Search usage (personal sites are unlimited, discouraged, restricted, banned, blocked, etc.).
- Develop a phone usage and monitoring policy.
- Delineate WHO does the monitoring, as well as when and how.
- Determine how the monitor responds to different types of violations. Some violations may merit a warning. Some may merit a report to law enforcement.
- Share the policy with employees (and determine if you need consent to the policy).
- STICK WITH YOUR POLICY!
- Train employees and plan to refresh training.
For many businesses, the simplest answer is to take the steps one at a time. First, just set the policy. See if it works. Ask employees if it is difficult to abide the policy. Once you are sure you have the right policy, determine if you need to take steps to enforce the policy. Finally, always ask whether a monitoring policy is really needed. Sometimes it is best not to know how the sausage is made.