Technology now makes it possible for employers to keep track of virtually all workplace communications by any employee, on the phone and in cyberspace. And many employers take advantage of these tracking devices: A survey of more than 700 companies by the Society for Human Resource Management (SHRM) found that almost three-quarters of the companies monitor their workers' use of the Internet and check employee email, and more than half review employee phone calls. According to a study by the American Management Association, businesses offering financial services -- such as banks, brokerage houses, insurance firms, and real estate companies -- are most likely to monitor employee communications.
Employers have a legitimate interest in keeping track of how their employees spend their work hours. After all, no one wants workers surfing X-rated websites, sending offensive email, or calling in bets on the ponies on the company's dime. And employers may want to take steps to make sure employees are not giving trade secrets to competitors, engaging in illegal conduct at work, or using company communications equipment to harass their coworkers.
Employers are allowed to monitor their employees' communications, within reasonable limits. But employers must make sure that their monitoring does not violate their workers' privacy rights. And, on a practical level, employers must decide how much monitoring is necessary to serve their legitimate interests without making their employees feel unduly scrutinized.
The Law of Monitoring
Generally, the law allows you to monitor an employee's communications in the workplace, with a few important exceptions. Here are the rules.
Employers may monitor employee conversations with clients or customers for quality control. Some states require employers to inform the parties to the call -- either by announcement or by signal (such as a beeping noise during the call) -- that someone is listening in. However, federal law allows employers to monitor work calls unannounced.
An exception is made for personal calls. Under federal law, once an employer realizes that a call is personal, the employer must immediately stop monitoring the call. However, if an employee has been warned not to make personal calls from particular phones, an employer might have more monitoring leeway.
Employers generally have the right to read employee email messages, unless company policy assures workers that their email messages will remain private. If the company takes steps to protect the privacy of email (by providing a system that allows messages to be designated "confidential" or creating private passwords known only to the employee, for example), a worker might have a stronger expectation of privacy in the messages covered by these rules. For the most part, however, courts have upheld employers' rights to read employee email -- particularly if they have a compelling reason to do so (to investigate a harassment claim or possible theft of trade secrets, for example).
Employers may keep track of the Internet sites visited by their workers. Some employers install devices that block access to certain sites (sites with pornographic images, for example) or limit the time workers may spend on sites that are not specified as work related.
Tips for Staying Within the Law
Employers currently have a lot of leeway in monitoring their employees' communications. However, the law in this field is evolving rapidly, as technological change and increasing concerns about privacy pressure legislators and courts to take action. If you decide to monitor employees, consider these tips:
- Adopt a policy. Tell your workers that they will be monitored, and under what circumstances. If you indicate that you will respect the privacy of personal phone calls or email messages, make sure that you live up to your promise. The safest course is to ask employees to sign a consent form, as part of their first-day paperwork, acknowledging that they understand and agree to the company's monitoring policies.
- Monitor only for legitimate reasons. You will be on safest legal ground -- and waste less time and money -- if you monitor only for sound, business-related reasons. If you have a reasonable suspicion that a particular employee is engaging in unauthorized use of your equipment, that would certainly qualify as legitimate cause for monitoring. Equally sound reasons include keeping track of productivity or monitoring the quality of customer service.
- Be reasonable. Employees will not perform their best work if they are in constant fear of eavesdropping. Overreaching monitoring -- or unnecessarily Draconian policies about personal use of communications equipment -- will only result in employee resentment and attrition. It is reasonable to prohibit workers from spending hours on the phone wooing a lover or catching up on gossip with an old friend. But it is unreasonable to prohibit brief personal calls of the "I'll be home late" or "where shall we meet tonight" variety.
To learn more about technology policies in the workplace, see Smart Policies for Workplace Technologies: Email, Blogs, Cell Phones & More, by Lisa Guerin (Nolo).