How far should employers go in monitoring their employees' electronic communications?
Houston Business Journal
Dan Krohn
Attorney
at Law
This is a question that is still being answered. In regards to employee e-mail, it is now pretty well established that employers can legally monitor employee e-mail. Though there have been exceptions, they are narrow and few. Employers should establish policies regarding the extent to which employee communication is monitored, base those policies on legitimate employer interests, and inform employees of the policies in writing. Of course, common courtesy still has its place. There will be personal e-mailings that once seen should be discreetly forgotten.
The more interesting question is the extent to which the law requires monitoring of employee e-mail. Laws prohibiting sexual, racial and other forms of employment discrimination place an affirmative duty on employers to prevent hostile work environments.
Though I am unaware of any case holding a hostile work environment to have been created by inappropriate e-mail alone, courts will admit relevant e-mail as damaging evidence in such cases. Furthermore, a policy of not monitoring e-mail could be deemed evidence of acquiescence in inappropriate behavior, especially after a complaint has been made.
Lastly, but importantly, in a labor union situation all bets are off. Monitoring employee e-mail which even informally addresses labor issues or union organization will likely be considered a violation of federal labor laws. In this context, a business owner should consult expert counsel immediately and train the employees accordingly.
D. C. Toedt
Shareholder
Arnold White & Durkee
To my mind, electronic-monitoring policies have to take worker dignity and privacy into account.
Personally, I think a company ought to engage in whatever lawful electronic monitoring it thinks will genuinely help run its business in a more competitive fashion. But a "Big Brother" attitude about doing monitoring for its own sake could easily backfire - a company might lose more productivity from low employee morale than it gains from the monitoring. And just imagine a plaintiff's lawyer arguing to a jury that the person in charge was acting like Homer Simpson's boss, Mr. Smither's, using electronic gadgets to snoop around in every corner of the company purely for amusement.
In any case, a company should seriously consider advising its employees in writing of the major types of electronic monitoring that it might do and also explaining briefly why it might do such monitoring.
(Getting too specific might not be a good idea, because an employee might later argue that the company had implicitly promised not to do any other kind of monitoring. Most companies will not want to be limited in that way.) The company should also try to limit its actual monitoring to what will help it pursue its legitimate business interests.
Mark
Thibodeaux
Computer Risk Management Practice
Arthur
Andersen
Few employers enjoy the thought of becoming "Big Brother," in today's litigious society. With concerns about sexual harassment, racial bias and insider trading, however, management has an obligation to do its best to make certain that inappropriate or illegal activities do not occur.
The need to prevent illegal or potentially damaging communication has always been there, even when telephone was the major means of communication. The big difference with today's electronic of communication is that it leaves an evidence trail. Management should exercise reasonable controls to protect shareholders, and monitoring communications is another part of that responsibility.
Employers are well within their rights to do this because the equipment is theirs and employees are using it on company time.
Still, companies have to achieve a delicate balance. If their monitoring policies are too intrusive, they run the risk of alienating and losing their best and brightest people. Employers should establish a policy that prevents potentially damaging communications, while allowing enough leeway for people to conduct a free flow of business.
One way to prevent excessive personal use of communications or inappropriate use of the technology is to create firewalls. This technology can keep the "good guys" in. At the same time, it keeps the "bad guys" out of the company network. Also, more parents are using filters that can keep children from going to inappropriate Internet sites and this same type of technology can be used by employers. The difficulty with filters is that new Web sites are added hourly, so it is difficult to create a filter that catches everything.
I advise employers who are concerned they will lose productivity because of Internet access and e-mail to take a fairly open attitude at first, until they see that productivity suffers.
Although a company that is too open can expose itself to litigation, that alone does not justify locking out employees from the electronic communications technology that can dramatically increase their productivity and speed. Like any new toy, new communications technology is exciting at first and invites curiosity. Once the novelty has worn off, employees are less interested in sending jokes and animated greeting cards and more likely to settle down and focus on getting the job done.
As these methods of communication become more routine, they are less likely to be abused. At the same time, employers will feel more comfortable establishing a balanced program to monitor employees without shutting down creativity and communication.
Edward M. Roche, Ph.D.
Vice President
The Concours Group, Kingwood
On a technical level, employers should be considered to own messages and other information created on their own infrastructure within the company. Monitoring is permitted in order to prevent criminal activity, such as stealing, or socially intolerable (and also illegal) activities such as racist, sexist, pornographic or other activities that, if discovered, would be detrimental to the enterprise.
This right for the enterprise, however, is far from absolute. Monitoring of communications in order to interfere with unionization or some other exercises of legal rights will get a company in conflict with the law.
It is rarely the case that the information technology department wishes to play the role of "big brother," but some companies have been forced to coordinate between IT and human resources in order to prevent employees using the Internet from their work place to access pornographic or Nazi Web sites.
Whenever an employee sends e-mail or posts information to external bulletin boards it should be realized that the company's name goes with the message. As a result, the enterprise has a right to ensure its interests in the public eye are not harmed by such activities.
Richard R. Brann
Partner
Baker & Botts LLP - Houston
Employers should not monitor employees' electronic communications at all without first having a written policy clearly notifying employees that the employer's electronic communications system is subject to monitoring at any time, without notice, at the employer's sole discretion. Employers who make extensive use of electronic communications systems without the protection of a good policy on the subject are looking for trouble.
Monitoring electronic communications, especially e-mail, is generally legal so long as workers are on clear notice that the communications may be monitored. Frankly, the safest course is to get every employee's signed, written consent. The goal is to disabuse employees of any expectation of privacy when using the equipment. Advance written consent will normally protect employers from liability when monitoring occurs.
Telephone monitoring is a more troublesome subject than e-mail, because most workers can credibly claim that they reasonably expected privacy when making personal calls form their desk. Most employers use monitoring systems only on an "as needed" basis. For example, when the employer has reason to believe than an employee may be abusing the use of the systems by reading and distributing inappropriate or offensive material.
Prohibiting all personal use of these systems is unrealistic. A more workable policy would allow personal use of electronic communications equipment as long as it does not interfere with the employee's work or disturb or offend other employees. The policy may also prohibit use of the equipment for a second employer's benefit or to send any harassing, discriminatory, or offensive material. The employer may then monitor communications on the system when there is a reason to believe the worker is violating the policy.
Latest News |
Most Viewed Stories |
Most Emailed Stories |
