SEMA eNews Vol. 12, No. 28, July 16, 2009

The Fine Line Between Employee Privacy and Monitoring

Consider this scenario: you provide your employees with a computer, a phone and a Blackberry. You pay for this equipment, program it, service it, and keep it after the employment relationship ends.

Of course you’re curious about what your employees do with the equipment. Are they text-messaging friends? Surfing the Internet? Forwarding pornography? Or worse, using it to access confidential information in preparation of starting a competing business? Surely you can monitor the usage of this equipment to determine any misconduct, right? Not exactly.

Protecting employee privacy rights is at the core of an ever-changing body of state and federal law governing this area. Join Tiffany Brosnan, Snell & Wilmer L.L.P., and Doug Frymer, Law Office of Douglas A. Frymer, at the 2009 SEMA Show for an informative session on employee and employer rights to privacy.

Employees may still have a reasonable expectation of privacy when they walk through your doors, access the Internet through a company-owned computer, or make a call on a company-owned phone system. Unfortunately for employers, "it's my computer and I can do whatever I want with it" is not the law.

In a recent case involving employees of a Southern California police department, for example, a court found that employees' privacy rights were violated when the employer obtained copies of the text messages sent by employees on their employer-provided pagers. As of this writing, the U.S. Supreme Court has not yet stated whether it will review this case.

In a 2008 case, a New York-based employer suspected that an employee, prior to his termination, stole the employer's client list in order to start a competing company. Using the terminated employee’s username and password, which had been stored on the company computer, the employer accessed the former employee's Hotmail account.

The employer claimed it did so to determine whether the employee had e-mailed the stolen client list to himself or anyone outside the company. The court found that this violated federal law. Many states require that employers provide clear written notice to the employees before monitoring certain types of communications. Other states, including Massachusetts, New York and Pennsylvania, have electronic monitoring legislation that is currently pending.

Distinctions are made in the statutes and court opinions depending on how the employer will perform the monitoring, i.e., live monitoring (as it is happening), image-only video recordings and/or audio recordings. So what is an employer to do? Give employees free reign over the equipment and trust that they use it properly? Go ahead and monitor employee usage and hope you don't get caught?

Neither is a good strategy.

Instead, first consider your individual business needs and what type of monitoring you would like to do. Monitoring phone calls, for example, would be of primary importance for a customer service call center. Retailers on the other hand might prefer to have video cameras monitoring the inventory and cash registers. A company doing research and development for new products might want to ensure that no one is accessing trade secret specifications on its computer systems.

Learn the laws governing what you can and cannot do in your particular state, then develop a written policy that protects your interests and complies with all applicable laws. Finally, ensure that your policy is applied correctly and consistently.

Mark you calendar for this informative session during Education Days at the 2009 SEMA Show. View a complete schedule of educational seminars here.

Track: Legal & Public Policy
Seminar: Do My Employees Have a Reasonable Right to Privacy?
Date/Time: Tuesday, November 3, 2009, 1:00–2:00 p.m.
Speakers:

  • Tiffany Brosnan, Snell & Wilmer L.L.P.
  • Doug Frymer, Law Office of Douglas A. Frymer
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