Ethical and Legal Workplace Monitoring

4/27/23
Walking the line between employer and big brother is a matter of knowing the rules and using common sense.

It’s only natural to be concerned about what your employees are doing at work, using your equipment, while they are being paid to work. Productivity aside, your company’s reputation may be at risk if they are engaging in online activities that are illegal, unethical or damaging to your brand. Workplace monitoring is one way to keep an eye on these risks. But there’s a fine line between being concerned and invading employee privacy, and crossing that line can destroy the atmosphere in the workplace.

Learn about monitoring employees’ social media activities: Download the free cheat sheet on Using Social Media in Investigations.

There’s a fine line between being concerned and invading employee privacy.

Employers can monitor employees’ online activities, with or without employee consent or prior knowledge if they are using company owned and operated equipment, says Charles Krugel, a Chicago labor and employment lawyer.

Transparency Makes it Fair

“However, even though it may be legal, I don’t recommend that employers conduct any sort of monitoring (audio, video, online or all three) without giving their employees prior notice, and maybe even obtaining consent,” says Krugel, “because this creates unnecessary suspicion and distrust in the workplace. In short, it’s bad human resources management,” he says.

“It’s more productive to let employees know why, how and when such monitoring takes place. Generally speaking, if an employer doesn’t trust its workforce enough to treat them as mature adults, the workforce will react in kind; i.e., they’ll treat their employer with distrust and suspicion. Consequently, turnover, disputes and other behavioral problems will flourish, and profits will decline,” says Krugel.

E-Mail Monitoring

When it comes to e-mail, messages sent and received using a company e-mail address on company computers are the property of the employer. Sometimes they can become evidence in the case of a lawsuit and the employer may be required to preserve them. Use of personal web-based e-mail on company computers, however, is more complicated.
“Federal law (the stored communications act) prohibits employer monitoring of personal employee e-mail accounts without the employee’s express consent,” explains attorney Jonathan Hyman, a partner in the Labor & Employment Group at Kohrman Jackson & Krantz. “Thus, it is illegal for an employer to intercept or monitor an employee’s gmail or other personal e-mail account, even if the employee accesses it through the employer’s computer and systems.”

Michigan-based attorney Jason Shinn gives the example of Stengart v Loving Care Agency, in which an employee used a personal, password-protected, web-based e-mail account accessed on the company-owned computer to send e-mails to her attorney. “After Stengart’s employment ended, she sued Loving Care for employment discrimination,” says Shinn. “Loving Care hired an outside investigator to access Stengart’s Yahoo! e-mail account, which provided information helpful to the defense of the lawsuit.”

When Stengart challenged the use of the e-mails by the employer, the New Jersey Supreme Court held that Loving Care had wrongfully accessed the e-mails between Stengart and her counsel, rejecting the employer’s argument that its handbook policy made the e-mails company records and that no expectation of privacy existed, explains Shinn.
“In this regard, the court focused on ambiguities in the employer’s handbook policy and the lack of a clear indication in the policy that employees’ personal e-mail accounts accessed through company computers constituted employer property,” says Shinn. “The take-away for employers is that policies must be properly drafted to identify the material covered and scope of permissible uses of the employer’s equipment.”