by William J. Hallan, Executive Vice President, Chief Operating Officer and General Counsel
Balance is not easy to achieve. Especially when it comes to maintaining employee privacy while also protecting your business interests.
Several tools can be used to investigate employee activities in order to ensure employee productivity. These include video surveillance and monitoring phone calls, emails, Internet usage and network access.
Employers should think again, however, if they believe they have absolute authority to monitor.
Both federal and state laws limit the scope of investigation, so employers should proceed with caution.
Employers should guide their actions by asking the following questions as they evaluate whether to implement different forms of employee monitoring: “Does the employee have a reasonable expectation of privacy, and does the monitoring further my legitimate business interests?”
For example, many courts have concluded that an employee does not have a reasonable expectation of privacy when it comes to video surveillance (non-auditory) in a public place. That makes sense, as employers routinely use video to monitor theft and ensure safety.
On the other hand, video surveillance in a bathroom or where employees change is inappropriate and violates the reasonable expectation of privacy.
Eavesdropping
Many businesses monitor calls for quality control and productivity. Those actions may be in the ordinary course of the employer’s business, which is a permitted exception to the federal and state laws.
But federal and state laws put stringent restrictions on eavesdropping. Michigan law specifically prohibits the willful use of a device to eavesdrop on a conversation without the prior consent of all parties.
In other words, don’t eavesdrop on your employees’ telephone calls without their prior consent. And if you are listening in (with permission, of course), stop monitoring the call as soon as you deem it personal in nature.
Obtaining your employee’s prior consent goes a long way in showing that there was no reasonable expectation of privacy.
New Technologies
In our digital world, employers have a host of new technologies to keep tabs on employees.
Employers may want to view Internet browsing activity, track the real time location of smartphones, or review access to company file servers.
Employers do have leeway to monitor devices they – and not their employees – own. However there are some pitfalls.
In 2012, the Michigan Legislature enacted the Internet Privacy Protection Act (IPPA), which prevents employers from asking employees and potential employees (job applicants) for access to personal Internet accounts, such as Facebook, Instagram, Twitter and Snapchat accounts.
The IPPA also prohibits employers from disciplining employees or failing to hire an applicant for failure to grant access.
On the other hand, the IPPA does not prevent employers from requiring employees to provide access to a device paid for by the employer or an account or service provided by the employer.
But wrinkles do exist. Consider whether an employer may view the personal email account of an employee that was viewed on the employer’s computer.
Courts have reached opposite outcomes on whether an employee has a reasonable expectation of privacy in that scenario.
Best Practices
Employers should be careful as they try to balance their business interests with the privacy of their employees.
Here are some best practices to follow as you consider implementing various tools to monitor your employees:
• Make sure that your employee monitoring is based on advancing your legitimate business interests.
• Consider whether your approach might violate your employees’ reasonable expectation of privacy.
• Develop a well written policy that is clearly communicated to employees. The policy should notify employees how they may be monitored and that they have no expectation of privacy when utilizing company-issued devices, computers, networks and files.
• Obtain written acknowledgment from employees that they have reviewed the policy and that they consent to various forms of monitoring.
• Once information regarding an employee’s activities is recovered, treat it in a sensitive and confidential manner.
