Businesses that monitor their employees’ use of computer or telephone systems should have a written policy on the practice and document their employees’ awareness of it.
The Notice of Electronic Monitoring Act (NEMA) now before Congress would require that employers notify employees in writing that they intend to read e-mail, monitor key strokes or Internet use, or listen to telephone conversations.
Even if that law does not pass, businesses need to have a written electronic monitoring policy. Without a policy, a business can face a harassment or discrimination lawsuit based on an offensive personal e-mail that an employee sent through its computer networks. E-mail messages may be used as evidence if the employer was not aware of and had no role in creating them.
Privacy has emerged as a hot-button issue in our society, particularly in the workplace. As employees, we are ill-at-ease at the notion of an Orwellian Big Brother tracking our every keystroke and mouse click at the office, storing the information and possibly using it in our performance evaluations.
Businesses are, however, finding that the technology intended to make employees more efficient can sidetrack them from their jobs. An employee who spends just 15 minutes a day checking the previous night’s sports scores, for example, costs his or her employer almost eight days of lost time a year.
More important and potentially more expensive, employers are becoming targets of lawsuits in which e-mail messages or postings containing off-color comments, ethnic slurs, or pornography are used as evidence of discrimination or other wrongdoing. This inappropriate material can spread throughout an organization in a matter of seconds and may end up before the eyes of people who feel offended or slighted by it. In 1996, for example, a group of employees at Morgan Stanley in New York City based a successful race discrimination case against the investment firm in part on a racist e-mail message that certain executives circulated among themselves.
There is no easy, foolproof prevention, but a clear electronic monitoring policy can discourage inappropriate use of office computers and telephones. A policy can also help employers avoid liability by demonstrating their good-faith efforts to curb inappropriate usage.
Under the proposed law, an employer would have to notify employees of its monitoring policy when they are hired, once a year thereafter, and whenever it changes the policy. The notice would have to explicitly state the activities that will be monitored (e.g., e-mail, Internet surfing, telephone calls), the frequency of the monitoring, the kind of information that may be obtained and the uses to which it may be put.
The proposed law would allow an employer to monitor electronic communications without notification if it has reason to believe that an employee is violating the legal rights of the employer or any other person and if monitoring would produce evidence of that violation. It would also allow employees to sue their employers for civil damages for failure to give the required notice. Individual damages would be capped at $20,000. In cases where many employees are affected, the maximum damages would be $500,000 per incident.
In developing their electronic monitoring policy, businesses should strive to protect their rights, while considering the workplace environment they want to foster. Legal counsel should be involved in developing the policy to ensure that it reflects these considerations.
An effective policy should:
• Make clear that the computer and telephone systems are the employer’s property;
• Inform employees that they have no individual rights to privacy on those systems and that their use of computers and telephones may be monitored at any time;
• Prohibit employees from using unauthorized codes or passwords;
• Define permissible and impermissible uses of computers and telephones; and
• Require that employees immediately report any impermissible use or inappropriate content.
The employee should sign an acknowledgment that he or she has read and understands the policy and agrees to abide by it as a condition of using the office’s telephones and computers.
With or without this law, a business should develop a monitoring policy, brief employees on it, and ensure that it is being adhered to. Failure to do so may result in liability and damages.
Stuart R. Kaplan is a Member in the Corporate Department of the national law firm Eckert Seamans Cherin & Mellott, LLC (www.escm.com). He made be contacted at (412) 566-5906 or srk@escm.com