Monitoring employees: An invasion of privacy?

Is there such a thing as privacy in the workplace anymore? The more technology use rises, the more respect for traditional notions of privacy has gone by the wayside. Recent statistics confirm this trend: In a survey by the American Management Association, 45 percent of employers indicated that they electronically monitor their employees, up from 22 percent in 1993 (according to a Mac World survey).

Often, employer monitoring is supported by a legitimate purpose, such as to aid in training employees, to monitor productivity and work quality, and to cut down on employee waste and theft, to name a few.

In the private sector, so long as the employer’s monitoring serves a legitimate business interest, and employees are informed of the possibility of monitoring, most employer monitoring will pass legal scrutiny. What follows are some practical guidelines to keep an employer within legal boundaries when monitoring employees.

Types of monitoring

Monitoring can take various forms and levels of intrusiveness, from reviewing employee e-mail messages, voicemails and telephone conversations, to searching desks and briefcases; from installing a video surveillance camera in the workplace to random drug-testing; from searching lockers to a random check of employee vehicles in the company parking lot.

The focus of this article will be technology-based monitoring–using computers, video cameras, and electronic devices.

Laws regulating monitoring

As might be expected, some laws exist to protect employees from overzealous employers, but not many. The most obvious protection is the Fourth Amendment, which protects citizens from unreasonable searches and seizures. But the Fourth Amendment does not apply to searches conducted by a private employer: It only regulates what a state or governmental actor can do.

One concern for employers who are egregious in their monitoring is the threat of an employee lawsuit alleging common-law torts, such as invasion of privacy, intentional infliction of emotional distress, and defamation. Monitoring that is not performed even-handedly or with some sensitivity may also subject an employer to a claim of discrimination.

More common, however, are employee claims that their employer violated either the federal or state wiretapping statutes. The Federal Wiretapping Act (FWA) prohibits the interception, disclosure or use of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.

Oral communications are only protected under the FWA when the employee expects her conversation to be private, and that expectation is objectively reasonable at the time. The FWA, then, prohibits the tape-recording of a private conversation. However, if an employer simply overhears an employee’s conversation without the use of a “device,” then no violation exists.

Michigan’s law that forbids eavesdropping is more restrictive than the FWA. Under the Michigan statute, the willful use of a “device” to eavesdrop on a private conversation without the consent of all of the parties is prohibited. The installation of a device in a “private place” in order to observe, photograph, or eavesdrop is also outlawed.

Of significance to employers is the use of video surveillance cameras. In almost every case on the issue, the use of cameras that record actions in common work areas but which do not record sound is permitted because no “communication” or “conversation” is monitored.

In contrast, if sound is also recorded on a surreptitious videotape, a statutory violation is the usual result. It is always important, however, to ensure and document (in advance) that such cameras are used in a reasonable manner and for a legitimate business purpose.

The ‘business use’ exception

Several exceptions exist to the State and Federal Wiretapping Acts. The most important exception for employers is the business use exception.

Michigan employers should note that while this exception is written in to the FWA, the Michigan eavesdropping statute does not contain a specific business use exception.

However, courts interpreting the Michigan statute have been generous to employers. Under this exception, telephone calls, e-mails, and the like which are monitored in the ordinary course of business are not considered a violation of either state or federal law.

Several levels of precautions are recommended, however, to ensure protection under the business use exception:

1) Have a clearly-stated and circulated written policy explaining that technology equipment in the workplace is the property of the employer and should only be used for business purposes. This should be part of the employee handbook.

2) Have a clearly-stated and circulated written policy that notifies employees that telephone calls, e-mails, and the work area may be monitored without warning for quality, productivity and other business-related purposes. For example, some employers put reminder stickers on office telephones or use a “pop up” screen each time the employee signs on to his or her computer to constantly remind employees of these limitations.

3) Limit monitoring to the extent necessary to prove your suspicions. For instance, if you suspect an employee is making too many personal telephone calls, listen only long enough to determine that the call is personal in nature, rather than work-related, or use a method such as a pen register if you are only interested in the number of telephone calls made.

4) Always have a clearly articulated business purpose for the monitoring before it is initiated (e.g., training, quality control, reasonable suspicion of employee theft, reasonable suspicion of employee abuse of company property or illegal activity).

5) Obtain prior consent whenever possible. For example, consider requiring an employee to execute a consent to randomly monitor e-mail messages when distributing computer passwords, etc.

6) Avoid singling out one employee or group of employees, unless there’s a legitimate reason for narrowing the focus of the monitoring.

7) If calls between employees and the public are monitored (for training or quality control purposes), consider playing a pre-recorded message warning the customer of the possibility of monitoring.

In Michigan, the consent of all parties to the conversation is needed to fall under the consent exception. In contrast, the FWA only requires the consent of one of the participants to the conversation.

By following these guidelines, using common sense, and constantly keeping employees informed, most employers will be able to use today’s technology to keep tabs on their workers.

Rachel Brochert-Roe, Esq., practices in the business and property law department of Smith Haughey Rice & Roegge, PC, in Traverse City. BIZNEWS

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