TIP OF THE WEEK

8 Workplace Surveillance Guidelines

There may be legitimate business reasons for employers to monitor their workplace, such as to help prevent theft and the misuse of work time as well as protect the safety of employees, clients and customers. However, before instituting any type of workplace surveillance, certain precautions must be considered.

Employee privacy rights must be balanced with the need to maintain a safe, efficient and productive workplace. When faced with privacy cases, courts will often look at whether a reasonable expectation of privacy existed and if a "reasonable person" would believe the intrusion to be offensive or without legitimate reason. The following are 8 guidelines for workplace monitoring while also taking employee privacy rights into consideration:

1. Electronic Communications Privacy Act (ECPA). The ECPA prohibits the interception and disclosure of email, telephone conversations, and data stored electronically while those communications are being made, are in transit, and when they are stored on computers. There are, however, important exceptions to the ECPA. For example, the EPCA allows employers to monitor electronic communications if they obtain consent from at least one of the parties involved in the communication. The ECPA is a complex law and employers should consult their legal counsel before engaging in electronic monitoring.
   
   
2. State restrictions. Some states have also passed laws related to workplace monitoring. Several require employers to obtain consent from all parties of an electronic communication before it is intercepted (this rule is especially important if you plan on monitoring employees' communications with customers). In addition, some states have restrictions on video surveillance, such as prohibiting employers from recording audio and limiting where video surveillance may be conducted. Before engaging in workplace surveillance (including electronic monitoring), review your state law.
   
   
3. Notification and consent. Obtain employees' express consent before monitoring or recording electronic communications. This can be accomplished by providing employees with a copy of your electronic monitoring policy and requiring a signed acknowledgement; the policy should also be posted in common areas. The policy should inform employees that you may monitor their communications and activities within the limits of applicable law and employees shouldn't have an expectation of privacy. In addition to being an important step for complying with ECPA notification requirements, this policy can help set privacy expectations and deter inappropriate use of company equipment and time.
   
   
4. Acceptable use policies. Employers should also have policies addressing the use of company computers, telephones, and other equipment. While some policies may state that company equipment is for business purposes only, other employers may choose to permit personal use of company equipment within reason. Acceptable use policies should also advise employees that they shouldn't use the company's electronic communication systems or equipment to send, receive, or store any information that they wish to keep private.
   
   
5. Oversight. It's important to have safeguards and training in place to prevent unauthorized access and impermissible use of employee activity logs and surveillance. For example, monitoring records should be kept in a secure location that is only accessible by authorized personnel. Employers should also consider maintaining a log of the individuals that access electronic monitoring records along with the date and time in which they are accessed.
   
   
6. Phone calls. As with any type of monitoring, employers that monitor employee phone calls should ensure that there is a legitimate business reason for doing so, such as monitoring customer service representatives for quality assurance purposes. If you plan to monitor employee phone conversations, notify employees in writing and have them sign a consent form. In general, employers should cease monitoring once it is determined a call is personal in nature, but the frequency and duration of personal calls can be tracked to ensure they are in line with your acceptable use policy.
   
   
7. Video surveillance. Before conducting video surveillance, it's important to obtain employees' written consent and post notices in areas where the surveillance will occur. Video surveillance may not be conducted in restrooms, locker rooms, and other areas where employees have a reasonable expectation of privacy. Determining whether employees have a reasonable expectation of privacy can be complex, so employers should consult legal counsel before installing any video surveillance equipment.
   
   
8. Employee concerns. To help address concerns about workplace monitoring, assure employees that you respect their privacy and share the business reasons for monitoring workplace activity and communication. Employees should be encouraged to raise any questions or concerns with their supervisor. Therefore, supervisors should be trained on workplace privacy policies and should be instructed to reinforce the company's position on workplace monitoring and privacy.