Author: Lisa Pierson Weinberger, Mom, Esq.
When to Use
Most employers engage in some form of monitoring of employee activities at work or when utilizing employer-provided equipment and devices. While there can be compelling reasons to do so, employers must be mindful of federal, state and local laws that limit an employer's ability to monitor all employee activities and communications, particularly without providing adequate notice.
The most effective privacy policies are those that are specifically tailored to an employer's actual needs. Accordingly, employers are advised to consider whether and to what extent they have a legitimate business interest in keeping tabs on employees. In designing a policy that would be appropriate for its particular organization, employers should consider how the surveillance of employees and the inspection of property could help to maintain a productive workplace, monitor quality control, prevent discrimination and harassment, protect relationships with clients and customers, maintain the security of trade secrets and confidential and proprietary information, and protect against employee theft and misconduct.
- A General Statement Regarding Employee Expectations of Privacy - For a variety of reasons, [Enter Employer Name] will monitor and inspect its premises and property (both tangible and electronic), as well as any property brought onto [Enter Employer Name] premises by employees or any third parties.
- A Statement Regarding Personal Employee Information - [Enter Employer Name] is committed to maintaining the confidentiality and security of employee personal information. [Enter Employer Name] will not release or share any confidential employee information including medical information to third parties unless the recipient has a legitimate business reason to know. The information will not be released to outside sources without the employee's approval, except to verify dates of employment and most recent job title, or as required by law. Only HR is authorized to disclose employee information.
- Monitoring of Electronic Media - Please be aware that all electronic and telephonic communications and information systems (including mobile devices) provided by [Enter Employer Name] are [Enter Employer Name] property. As a result, employees have no right to or expectation of privacy with respect to any email messages sent over [Enter Employer Name] email or instant messaging system, or text messages sent or received on [Enter Employer Name] cell phones. [Enter Employer Name] reserves the right to monitor, access, review, copy, or delete any communications or documents on its systems, including matters stored on individual employee computers and related media. Employees cannot and should not use the employer's communication and information systems, including email or voice mail systems, to send, receive, or store any messages that employees wish to keep private.
- Monitoring of Telephone Calls - [Enter Employer Name] reserves the right to monitor work-related calls on employer-owned telephones. As such, employees should not use [Enter Employer Name] telephones for personal use.
- Video Surveillance - If appropriate, [Enter Employer Name] may utilize video recording devices to monitor the property. If such action is taken, such devices will not be placed in any unlawful part of the property [Inset if you have a union and will not be used without agreement of the union].
- Inspection of Personal Property - All personal belongings of employees are subject to search at the sole discretion of [Enter Employer Name] if brought onto employer premises. The inspection of such property includes anything stored in an employer-issued locker or desk. Please note that no employee is ever permitted to use his or her own lock to maintain the safety or security of personal belongings. If an employee does not want personal belongings to be inspected, he or she should not bring such possessions to the workplace.
- Vehicle Searches - Any vehicle provided to an employee by [Enter Employer Name] are employer property and may be searched at any time, and such vehicles may be tracked with GPS devices to monitor travel for work-related purposes. In addition, [Enter Employer Name] may search employee's personal vehicles if parked on employer premises. By using [Enter Employer Name] parking lots, employees agree that their vehicles are subject to search.
Employers should not limit the management of employee privacy expectations to handbooks. Wherever possible, employers should let employees know that activities may be monitored and that by using the employer's equipment, the employee is consenting to such monitoring. Reminders about this policy can be provided in the following ways:
- Computer Log-On Screen: Every time an employee logs in to his or her employer-provided computer, a message could appear requesting that the employee acknowledge and consent to the employer's monitoring policy.
- Receipt of Electronic Devices: Whenever an employee receives an electronic device from the employer (i.e., mobile phone, tablet, etc.), the employee should be required to sign a written acknowledgement that the use of the equipment will be monitored and that all information sent and stored on the equipment are employer property.
While there are many reasons to monitor employee behavior, employers must consider the potential negative ramifications of monitoring and surveillance when creating a policy that meets the employer's individual needs. Some issues to consider are as follows:
- Employee expectations of privacy: While employees will understand the need for reasonable surveillance, employees also still expect to have some element of privacy respected. An employer that oversteps these expectations risks morale and/or retention problems.
- Employee right to engage in protected concerted activity: The right of employees to advocate for improved workplace conditions either along with or on behalf of other employees is protected under federal law. As such, employers should ensure that any such activity discovered by employers through monitoring is not disciplined in violation of the law.
- High costs: The cost of monitoring may outweigh any benefit received from it. Monitoring can be expensive, especially for small employers. It may not be worth installing expensive computer software and hardware or surveillance equipment, as well as hiring qualified workers to maintain these systems, if these changes will only result in slight improvements in employer protection.
Ultimately, employers need to determine exactly what goals they are seeking achieve by monitoring employee activity and then design a surveillance policy that is intended only to meet those goals. Monitoring employees just for the sake of monitoring is not advisable.