In recent years, employers have been walking a tightrope increasingly fraught with danger. Employers must balance their need to monitor employees’ computer usage with employees’ privacy rights. The slightest misstep can result in a lawsuit. Nevertheless, it is imperative that employers perform this delicate balancing act.
Why Employers Should Monitor
Recent surveys estimate that at least 72.3 million workers use a computer at work and nearly three-quarters of those computer users have access to email or the Internet. Unfortunately, not all of employees’ computer time is being spent doing their jobs. It is estimated that during the 2003 holiday season at least one-third of employees took time to shop online at work. The result is lost productivity to the employer. But, not all of employees’ misuse of computers is so benign. Employee misuse of computers can result in problems with overloading of computer networks, proprietary information being improperly transmitted to third parties via the Internet or email, the introduction of computer viruses, and lawsuits against the employer due to inappropriate emails being sent to or amongst employees. For all these reasons, most employers find it advisable and necessary to monitor their employees’ Internet and email usage.
The Dangers of Monitoring
Employees are growing ever more sensitive to their privacy rights in light of the passage of such statutes as the Health Insurance Portability and Accountability Act and the backlash to the U.S. Patriot Act. Many employees view employer monitoring of computer usage as just one more example of employers overstepping their bounds. For this reason, no employer should commence or continue monitoring employee computer usage without first having a firm grasp upon the potential privacy issues involved in doing so.
Those issues arise both on the state and federal level. The Federal Wiretap Act not only prohibits the acquisition of the content of certain electronic communications – including in the workplace – it also prohibits the use of any such unlawfully intercepted communication. This means that employers whose monitoring fails to comply with this act face potential liability for themselves and personal liability for employees, such as human resources and IT officials who obtain and then use evidence obtained from monitoring employees’ email or Internet use.
Additionally, employees are increasingly asserting claims against employers when their private information gets into the wrong hands. For example, there have been several examples of employees obtaining personal data about co-workers and using that information to fraudulently obtain goods and credit. Under such circumstances, it is possible employees could have legitimate claims for negligent hiring, retention and supervision, negligence, or unreasonable disclosure of private facts.
What Employers Can Do
There are several steps employers can take to ensure they are monitoring employee computer usage in the most lawful manner practicable:
Distribute a detailed written policy to all employees describing the type of monitoring undertaken and keep a copy signed by each employee in their personnel file;
Include a prompt on your computer system at log-on reminding employees that their use of the system is subject to monitoring;
Limit employees who perform monitoring. They should be also be strictly controlled, perhaps including having more thorough background checks.
Make sure at least one person is up-to-date regarding the current limitations on an employer’s ability to monitor email and Internet usage, as well as other privacy-related limitations with respect to employees.
Using these steps and staying abreast of current developments should assist employers in limiting potential liability in this area.
