Big Brother: Know the Right Way
to Monitor Employees

02/26/07

One of your employees has been forwarding sexually explicit e-mail jokes to two other employees for several months. The two employees sue your firm for harassment – and win.

While monitoring your employees’ phone calls for service quality, you end up listening to an employee’s personal conversation and learn that she is using illegal drugs. The employee sues you for violating her privacy – and wins.
Examples such as these raise the question of how to protect your company’s interests, while also recognizing your employees’ privacy rights. In the first case, having an effective email-monitoring program could have stopped the harassment before it resulted in a lawsuit. In the second case, knowing your employees’ privacy rights regarding telephone use could have prevented you from violating those rights.

Stay within legal limits
Legal rulings on workplace monitoring generally hinge on interpretations of several laws, such as the federal Wiretap Act and its amendment — the Electronic Communications Privacy Act (ECPA). They are also linked to common-law protection (as employees have a reasonable expectation of privacy) and state privacy laws. To stay within legal boundaries check these guidelines:

Lower employees’ privacy expectations.
This reduces your chances of being found liable for privacy invasion. Notify employees about your monitoring policy for e-mail, phone, Internet and voicemail and have them sign an acknowledgment. Make sure they understand you have the right to conduct inspections and search company property, such as desks and lockers.

Be specific about what is allowed/prohibited.
For example, you may forbid transmitting or downloading offensive material and passing confidential information to outside sources. Inform employees of the consequences of unauthorized and/or wrongful use or abuse of information.

Monitor phone calls.
In most states, employers who provide proper notice may monitor employee phone calls. Under the ECPA, you must stop listening once you realize a call is personal. Be sensitive to your employees’ rights, and explain that monitoring is not a sign of distrust. It’s simply to protect the company’s interests.