Privacy Laws for Monitoring Employee Technology Use
by Dillon Fulcher, Cotney Construction Law
(Editor’s Note: Dillon Fulcher is an attorney at Cotney Construction Law with extensive experience on a range of construction and related matters. Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association. Fulcher can be reached at (866) 303-5868.)
If your employees are using workplace technology for personal reasons, can you monitor their activities? Is their social media use subject to scrutiny when using the employer’s work phone or computer? The answer is unclear, but worth delving into, as there may be some tricky employment law pitfalls for employers and privacy concerns for employees. Employers need to be careful when engaging in monitoring, and employees should know to what extent their personal information is subject to that scrutiny.
With the explosive growth of social media, it is becoming more difficult to separate work time from social time. On average employees are spending eight or more hours per week on activities unrelated to the job while they are on the clock. Employees are checking their social media during meetings, visiting sports web pages while driving the company truck, and tweeting their thoughts at the jobsite. These may be seemingly innocuous activities, but they could be affecting an employer’s business. More harmful endeavors may include employees using unlicensed software or accidentally downloading viruses. In order to combat these harmful effects, are employers allowed to monitor and review their employee’s online activities? Unfortunately, the answer depends on the latest law in your area of the country, but getting an employee’s consent can give an employer greater protection.
Around 2/3 of businesses monitor their employees’ internet use and nearly 1/2 monitor employee e-mail. This makes electronic monitoring a burgeoning area of law where employee privacy meets an employer’s expectation of productivity and appropriate conduct. An employer should have policies in place to govern the use of work equipment such as computers, phones, or tablets to avoid the privacy concerns that pervade employment law in the technological age. These policies are a useful tool to make it clear to employees what conduct is acceptable and what is not.
However, there are some dangers to monitoring and controlling workplace social media usage. Namely, workplace privacy concerns. The Electronic Communications Privacy Act (ECPA) protects electronic communications from being intercepted, yet it provides some important exceptions that apply in the workplace. The first exception is consent. If an employer receives consent to monitor all communications on all company devices, then this avoids the hurdle of the ECPA. The next exception is the business extension exemption. This typically requires a legitimate business purpose for monitoring, such as preserving confidential business information. On the opposite end, once an employer determines that a phone call is personal, there is no legitimate business reason to continue to monitor the call. As part of the ECPA, there is the Stored Communications Act (SCA). The SCA concerns the access of stored electronic communications. The key to legally reviewing stored data is whether an employee believes he or she has an expectation of privacy. Generally, the courts have held it has to be decided on a case-by-case basis.
Social media access at work is a growing concern. There is a divide as to whether an employer can use devices to record the keystrokes on an employee’s computer, allowing the employer to log into personal e-mails and social sites. This practice is becoming increasingly commonplace, but certainly affects employee morale. In the alternative, other employers are opting to create social media policies, or asking for the passwords to those accounts to ensure proper conduct as to workplace comments, prevent harassment, or track criminal activities. However, the control of social media comments may implicate the National Labor Relations Board in terms of concerted activity of employees. Namely, an employer cannot prevent employees from discussing terms and conditions of employment with other employees, even though it is openly on social media.
This area of employment law is complex and full of perils for both employers and employees. For that reason, it is crucial to have workplace rules that specify when monitoring will happen, and when the employee has an expectation of privacy. The best option for an employer is to require consent to the monitoring of work devices. This should eliminate any gray area and provide the employee with notice that their privacy may be limited. Certain policies that the employer should have include an electronic communication policy, a social media policy, a personal device policy, a confidentiality policy, a non-disclosure policy, and a written information security program. These policies should state unequivocally that the employee has no reasonable expectation of privacy on workplace devices, such information may be disclosed for purposes of investigation, litigation, internal dispute resolution, or other legitimate business purpose. Also, it should state that the employee must adhere to the company’s code of conduct as to social media posts. Employers should consider contacting an attorney to determine the best policies for their business and how they can be implemented to protect the employer and employee.