Employee Monitoring

EMPLOYMENT ALERT

"BIG BROTHER" IS WATCHING YOU! - AT WORK

By Karen A. Khan, Esq.

You are at work and are having a personal telephone conversation on your work phone.  Can your employer monitor that call?  You regularly surf the web at work on your work computer.  Can your employer monitor that?  How about sending a text message from your employer-provided cell phone or pager?  Doing your online banking while at work?  Checking personal e-mail?  Doing a little side business for personal gain while at work?  Logging on to social network sites at work? Bad-mouthing your employer or co-worker on those sites?  Reading and forwarding sexual jokes or other inappropriate material?

I will assume that we have done at least one of the acts listed above.  The question is:  What amount of privacy rights do we have in the workplace?  With the exception of changing clothes in the locker room and using the restroom, the answer is virtually none. And while public employees may have Fourth Amendment rights against 'unreasonable' searches, the issue there becomes what is 'unreasonable' and when does that employee have a 'reasonable expectation of privacy.'

There are many reasons why employers institute electronic surveillance policies.  Sexual harassment and hostile work environments immediately come to mind, because employers have a legal duty to implement policies which prohibit such behavior.  The potential for workplace violence is another reason that employers may monitor suspicious behavior.  Employee productivity or lack thereof is yet another important reason for electronic surveillance in the workplace.  After all, employees are paid to do a job, not to conduct their personal business, shop online, or send personal e-mails while at work.

In 2008, the American Management Association and The ePolicy Institute released their "2007 Electronic Monitoring & Surveillance Survey" which found that approximately 43% of employers surveyed, monitored their employees' e-mail messages, with 73% of those that do so using technology to automatically monitor e-mail; 66% monitored employees' surfing the web; and 45% monitored their employees' keyboard time and keystrokes.  Yes, "Big Brother" is watching, and usually for good reason.  Technological advancements have blurred the lines between work and play, and between work and working on personal matters.

Many employers have general policies prohibiting the use of electronic communications for personal reasons, but a better practice would be to develop a clear e-mail, computer, text messaging and Internet policy that places employees on notice they should expect no privacy in such communications.  The policy should also specifically prohibit harassing, inappropriate and objectionable communications.  Finally, the policy should place all employees, including supervisors, on notice of the employer's monitoring practices and discipline to be issued for violations.  Once in place, employers should train their employees and supervisors on their policy and ask them to acknowledge reading and understanding it, by signing a document stating as much.

So the next time you are at work and suddenly remember that you forgot to pay your bills online, just make a note to do so when you get home.  But you complain:  "It's so easy to sneak online, click quickly, and get the bills out of the way."  Just remember, it is so easy for your employer to monitor your bill-paying activities and have legitimate grounds to discipline you all the way up to termination.  Is it worth it?

The contents of this Employment Alert are intended for informational purposes only and must not be considered as legal advice.

Karen A. Khan is a local attorney and litigator representing employers and employees in all areas of employment law who has represented both large corporations and individual employees alike in employment discrimination matters, and who has conducted litigation nationwide.

The Khan Law Group, PLLC is a Washington, D.C. based employment law firm representing corporate clients as well as individual employees with employment issues  in Washington DC, Maryland, Virginia, and nationwide. The Group is dedicated to providing the highest calibre of personalized legal services and representation.

Contact The Khan Law Group, PLLC at 202-290-1670, for a confidential consultation.