by Rebecca Berlin
Many businesses engage in various forms of employee monitoring. This monitoring can range from listening to phone calls to reading e-mails to video surveillance. Reasons for doing this include quality control, assessing productivity, preventing harassment and discrimination, and preventing theft. However, the employer's legitimate business need to monitor employees must be balanced with the employees' right to privacy. An employer may be liable for claims of invasion of privacy if employee monitoring violates the employee's "reasonable expectations of privacy."
When is employee monitoring okay and when does it go too far? Consider the following:
1. An employer wants to detect and prevent the theft of merchandise by employees. It would be reasonable to use video surveillance in the warehouse or the display area. But the employer should not use video surveillance in the employee break room, bathrooms, or changing areas. An employee would have a reasonable expectation of privacy in these areas.
2. An employer wants to monitor the telephone calls of its customer support staff for quality control. The employer can monitor business related phone calls for a legitimate business purpose, but once the employer becomes aware that a particular phone call is personal, the monitoring must stop. An employer can prevent inadvertently listening in on an employee's personal calls by designating certain phones for personal calls and the rest of the phones for business use only.
3. An employer wants to monitor e-mails to prevent or stop possible discrimination. Several employers have already faced discrimination lawsuits over material that was transmitted via e-mail. This can occur when insensitive "joke" e-mails are sent either to an individual or to an entire mailing group. It can also occur when an e-mail communication from one individual to another contains discriminatory statements. Employees often feel that their e-mail communications are private, but employers can legally monitor employee e-mails. The employer's best bet, though, is to inform employees that their e-mails may be monitored.
In fact, it is a good idea for employers to develop a policy on employee monitoring and to make sure that their employees are aware of it. If an employee files suit for invasion of privacy, the employer's best defense will be to show that the employee did not have a reasonable expectation of privacy. A policy that clearly spells out how, when, and where employees will be monitored provides evidence that the employee did not have a reasonable expectation of privacy.
Consult an attorney about employee monitoring to make sure you don't cross the line.
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