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Can Big Brother Watch?

Originally published: 03.01.08 by Mike Coyne


Can Big Brother Watch?

Adopting workplace privacy policies is a prudent business practice. Just make sure employees are aware of the policies.

Where are your employees and what are they doing? There was a time when these questions were difficult to answer, particularly if part of your workforce was on the road. That is no longer the case. GPS systems can track employees’ locations, and communications via computers store detailed information regarding employees’ activities. But how far can you go in monitoring your employees’ activities before you invade their privacy?

The answer depends, to some degree, upon what you have communicated to your employees. As a general rule, employees have a “reasonable expectation of privacy.” At the same time, employers have legitimate business reasons for monitoring employees, such as assuring timely performance, monitoring quality, and protecting business and trade secrets. Thus, for example, it is pretty widely accepted that GPS systems on company vehicles do not violate an employee’s reasonable expectation of privacy.

What about monitoring employees’ e-mail and Internet usage? The Electronic Communications Privacy Act of 1986 prohibits employers from intercepting employees’ e-mails or reading stored e-mails. However, the law contains an exception when one party to a communication consents to the surveillance. Consent can be either express or implied. If an employee is given advance notice by the employer that e-mails and Internet usage will be monitored, and the employee continues to work for the employer, then the employee has given his or


her implied consent to having emails and Internet usage monitored.

Thus, if a company wishes to monitor electronic communications of employees, it simply needs to adopt a written policy to that effect and make employees aware of the policy. If you decide to adopt such a policy, you will not be alone. Surveys by the Society for Human Resource Management and the American Management Association have found that over 70% of employers surveyed monitor employees’ Internet usage and check employees’ e-mails. More than half of the companies surveyed also monitor employee phone calls.

What about other privacy issues? Can you search an employee’s locker or desk? Again, the answer depends, at least in part, on your behavior as the employer. If you give employees locks or keys and encourage them to keep lockers and desks locked, then the court may find that the employees have a reasonable expectation of privacy. If, however, you have a written policy that the desks and lockers may be searched, then there probably is no reasonable expectation of privacy.

As you can see, the key is to have policies in place regarding workplace privacy and to have those policies communicated to your employees. It is a good idea to have employees sign an acknowledgment and consent form at the time they are hired regarding these policies. Finally, be sure to check with an attorney to learn if your state has any special laws regarding workplace privacy.

While you certainly don’t want to take on the persona of Big Brother and put all employees under complete surveillance, you do have a right to protect your business. Just make sure you are doing it legally.

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit www.healthlaw.com, or call 440-835-0600. >> To pose a question to Mike, go to www. hvacrbusiness.com/forums.


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