by Jami J. Fenner
7/13/2010 2:14:00 PM
In discussing employer monitoring of employee computer use, the first requirement is dividing employers into two categories: public and private. In general, private employers may conduct electronic monitoring. However, surveillance of government employees’ electronic transmissions is governed by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures by the government. In either instance, it is best to consult an attorney before instituting a program to monitor your employees.
For private employers, many risks are associated with employees’ use of technology in the workplace. These include potential liability for sexual harassment, defamation, and car accidents caused by cell phone use; misuse of resources or time; disclosure of confidential information; cyber-smearing of the employer; and wage and hour issues caused by employees working too many hours via computer and email. Given these risks, employers are increasingly choosing to regulate and monitor computer and telephone activity by employees.
An employee subject to monitoring may claim the employer has violated some privilege or privacy interest. To account for privacy interests, you should have a current, clearly worded, readily available policy, signed by each employee. The policy should make clear: which systems are considered employer property; acceptable use of employer property and systems; that monitoring will occur; that the employee should not expect privacy, and passwords do not create an expectation of privacy; and violations of the policy may result in disciplinary action.
It is important to specify whether the monitoring will include activity on an employee’s personal email, blog or social networking site if such activity is performed on a company computer. A court in another state recently held that a company policy reserving the right to intercept electronic communications related to “the company’s media systems” did not address the use of web-based email accounts, which the court concluded an employee could reasonably expect would remain private.
With respect to government employees, electronic searches, like searches of an employee’s physical office, must have a legitimate work-related purpose and not be excessive in scope. As the Supreme Court recently made clear, employer policies for government employees will shape the reasonable expectations of employees, especially to the extent that such policies are clearly communicated. These considerations are important for private sector employers as well.