Toll Free: 877.880.

4477
Phone: 281.880.6525

Can You Monitor Your Employees

Communications?

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Employers have many reasons to monitor employee communications from
time to time, including staying out of legal trouble. For example, if any kind of
illegal discrimination or employee harassment is going on, and you allow it to
continue by ignoring possible evidence of its occurrence, you could lose a
lawsuit. Or if employees are defaming your company through public social
media postings or revealing proprietary information about your products,
services or strategic plans your business could sustain serious competitive
injury.

The point is simple: There are times you need to keep tabs on what
employees are communicating, and doing so doesn't make you a sinister "big
brother." The fact that there are so many ways employees can abuse
communication systems makes the task of staying on top of it a bit trickier. For
instance, your right to monitor employee emails sent from company-owned
computers via the company's email system is fairly straightforward. But, of
course, that's only part of the problem.

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 What's in Your Employee Handbook?
You may be concerned about messages an employee is sending using a
personally owned smart phone. Can you monitor those messages? The
answer begins with the policy you lay out in your employee handbook. As
noted, in deciding employee privacy cases, courts typically consider whether
the employee had a reasonable expectation of privacy.

Such an expectation disappears when you spell out your policies clearly and in
detail, then secure an acknowledgement that the employee has read and
understood them.

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Among other provisions, these policies generally should:
Explain their purpose in terms conveying that employees all ultimately
benefit from the safeguards in place. That is, the policies are intended to
protect the company (and, therefore, employee paychecks) and possibly
to shield all concerned from defamatory communications that other
employees could initiate.

Articulate which modes of communications are subject to employer

monitoring, including emails and other forms of electronic communication
on company-owned devices, including cell phones, and

Spell out the steps you might take pursuant to the policy.

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Your rights to monitor employee communication, when employees have been
put on notice that you'll exercise them, might be greater than you expect.
According to the Small Business Administration (SBA), "no specific laws govern
the monitoring of an employee's social media activity on a company's
computer" if you're looking for unauthorized posting of company content.

The SBA cautions, however, that there have been rulings against employers
who fired workers for complaining on social media sites about their workplace
conditions. That is generally considered "protected speech" under the
National Labor Relations Act. The SBA's advice: "Provide employees with a
social media policy and be sure to include information about what you
consider confidential and proprietary company information that should not be
shared."

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 Employer Exemption
What about monitoring employee emails and telephone conversations?
Although the Electronic Communications Privacy Act of 1986 (ECPA) prohibits
the intentional interception of "any wire, oral or electronic communication," it
does include a business use exemption that permits monitoring of email and
phone calls.

The SBA states, "Generally, if an employee is using a company-owned

computer or phone system, and an employer can show a valid business
reason for monitoring that employee's email or phone conversations, then the
employer is well within his or her rights to do so." And as noted, if employees
have been given a heads up and demonstrated they understand the policy,
you're in a strong position.

However, the SBA advises employers to be aware that the ECPA "draws a line
between business and personal email content you can monitor business
content is OK, but personal emails are private."

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"BYOD" Policies
The latest frontier in discriminating
between legitimately personal
communications and employment
related ones involves employees using
their own laptops and smart phones
pursuant to a "bring your own device"
(BYOD) policy. There are practical
advantages to BYOD policies, including
employee convenience and also savings
in the company's IT budget.

On the other side of the equation,

employees using their personal devices
can give them a false sense of impunity
with respect to what company-related
sensitive or offensive information they
convey on them.
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If you do have a BYOD policy, consider expanding the scope of your privacy
policies to accommodate it. The policy could:
State that you reserve the right to access, monitor and delete information
from personally owned devices under specified circumstances,

Stipulate which employee-owned devices can be used for work purposes

and are eligible for tech support,

Require the use of "mobile device management technology" to create an

electronic barrier between personal and business-related data,

Limit employee job categories eligible for using personal devices,

Establish data security protocols, including standards for passwords, and

Set a schedule for deleting business-related data maintained on personally

owned devices.

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The law governing employee privacy at a time of rapid evolution of
communication technology isn't entirely clear on all counts, can vary by
jurisdiction, and is constantly changing. That's why it's prudent to consult with
an attorney with relevant expertise as you develop your policies to balance
your legitimate interests with those of employees.

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Toll Free : 877.880.4477
Phone : 281.880.6525
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