March 18, 2019 | Court Rulings
Have you considered monitoring your employees’ communications at work? It’s a delicate balance to create a policy to monitor employees activities and protect your company without violating employees’ legal privacy protections. But you may have legitimate reasons for doing so, especially those emails generated on company servers.
Reasons to Monitor Emails
Why would your company want to monitor employees’ communications at work? Valid reasons for such oversight include:
• To identify leakage of intellectual property and other confidential information. Keeping proprietary company data from getting into the hands of competitors is a high priority. It’s unlikely an employee bent on corporate espionage will deliberately disseminate secrets in emails. Inadvertent leakage, or a lack of awareness regarding the sensitivity of certain company information, can be addressed with specific content-flagging technology.
• To assess productivity. You might want to evaluate how much time an employee is spending browsing the internet or social media sites if an employee is missing deadlines or underperforming.
• To safeguard against reputational damage. Employees may distribute false, potentially incriminating, or defamatory information about your company.
• To prevent legal claims. Monitoring systems may help catch emails or instant messages with inappropriate messages. By flagging language in messages that is associated with sexual harassment, bullying, and hostile work environments, employers can identify and address problematic behavior before legal claims are made.
Internet Red Flags
Monitoring employees’ activities on your network is not restricted to their communications and productivity, nor is it all retrospective. Today’s software solutions make it easy to monitor employees’ computer activity by generating reports of daily Internet activity and providing archives of the contents of draft emails that weren’t ever sent.
Monitoring software usually allows employers to list words, phrases, and websites that, when detected, may identify potential problems and violations of company policies and procedures. Other solutions can be customized to block sensitive data from escaping, whether it’s transmitted via email or Web forms or saved on remote laptops. Reports can be customized and sent to you automatically.
The legal standards for monitoring employee communications do generally give employers the upper hand, especially when company-owned computers are used. Most employees are aware that they can’t expect email messages on employer computers to be private. Many computer systems even require employees to acknowledge that such monitoring may occur any time they sign in.
To be on the strongest legal ground, employers should warn employees, in writing, that their emails are subject to monitoring. If your computer systems don’t include such warnings, they may be published in the employee handbook or sent via email, or be an element of an employee training session where the employee acknowledges and accepts the monitoring policy.
Before going ahead with warning employees, employers do need to outline valid business reasons for monitoring communications. Should your policy sound arbitrary and intrusive, it will likely affect employee morale, and cause more damage than whatever you might turn up with your policing efforts.
One area of employee communication that employers can not monitor or interfere with is protected speech regarding potential union organizing efforts or discussions about terms and conditions of their employment. The National Labor Relations Board has ruled that employees with access to email at work are presumed to have the right to use systems after working hours for communications protected by the National Labor Relations Act.
When communications are made via employees’ personal email accounts that are accessed on company-owned computers, the laws are murkier and can vary from state to state. What’s permissible might be dictated by the details of the situation. One standard used by the courts is whether such encroachment would be “highly offensive to a reasonable person.”
Room for Interpretation
Despite similar fact patterns, courts do sometimes disagree on cases involving monitoring employee communications, due to state laws. For example, in one state, a court faulted an employer for violating an employee’s privacy rights by reading a communication between the employee and his attorney. In another state with a similar complaint, the court dismissed the case.
The court’s decision may be influenced by the nature of what’s discovered by monitoring employee communications. For example, a Georgia employer was cleared of a privacy violation charge when its review of an employee’s personal email account accessed via a company-owned computer revealed that the employee was running a private side business during working hours.
Such gray areas demonstrate that it’s prudent to consult with your attorney and HR advisors when developing or revising sensitive personnel policies.