Posted on 08-31-2017, by: Maile Proctor – 10x Digital Inc
Equip yourself to avoid potential privacy dilemmas and discrimination lawsuits
Are you concerned about what your employees are up to or simply want a better idea of what’s going on in your office? Many businesses monitor their employees to ensure that all is well within the four walls of the office, and have video evidence if there’s a sexual harassment incident. Still, monitoring your employees can post issues both legally and with day-to-day productivity.
“You could create a morale problem and hurt employee performance if your workers feel a distrustful Big Brother is lurking over their shoulders,” explains Riva Richmond, with Entrepreneur.com.She continues, “You could inadvertently learn about people’s religion, sexual orientation, political views, and medical problems, creating potential privacy dilemmas or even opening up your firm to discrimination lawsuits.”
That doesn’t mean you can’t or shouldn’t monitor employees. Instead, make sure your bases are covered before digging into any employee emails or setting up a video monitoring system.
- Talk about it
It is essential that you tell employees they’re being monitored. It’s a good idea to have your monitoring policy written into employees’ contracts, so you can be sure that they’ve read it and signed off on it. While not all monitoring requires consent (i.e. work email), a signed contract is always helpful in case an issue arises.
Note that it’s especially important to be clear about your use of video monitoring.
“Putting up video surveillance without notice to employees or using hidden cameras at work may violate employee privacy rights. Some states, such as Connecticut, make notice to employees an explicit requirement in their laws, while courts have established similar protections in some other states, as well,” explain experts at FindLaw.
- Create a Clause for Email Monitoring
Because your company owns the email accounts that your employees use to send messages, you’re allowed to monitor this source. While you can monitor this platform, and others that are owned by the company, it’s wise to remind employees that the work they do within these programs is not private:
“Provide written notice to workers that all electronic and phone messages are the property of the company, should be used for business purposes and are not considered private,” says The HR Specialist.
Email is one of the most effective monitoring tactics when taking preventative measures because it’s something they’re doing every day. It can be a great way to keep on top of customer satisfaction and confirm or deny allegations against someone’s word. While some businesses have gone to court for email and other forms of communication monitoring, the employer wins in most cases.
“This includes the United States Supreme Court, which held in 2010 that the city of Ontario, California, could read private text messages a member of its SWAT team sent—and received—on his city-issued pager,” explains The HR Specialist.
Why? “Courts have ruled that if an employer owns the computers and runs the computer network, it’s generally free to read employee e-mail messages, as long as there’s a valid business purpose for doing so,” according to SHRM.
“Valid business purposes” includes protecting your business from theft or harm, both physical or to the brand and reputation itself. To ensure the workplace is free of harassment is another legitimate reason.
- Be Open about Video Monitoring
If you suspect foul play in your office or you simply want to know exactly what’s going on in the office on a daily basis, you can set up a video camera in strategic places around the office. Legally, the use of video monitoring in the workplace falls under similar regulations as video recording in public places.
“Video surveillance is governed by common law, using the ‘reasonable expectation of privacy standard.’ Courts have consistently held that employees have a reasonable expectation only in bathrooms and locker rooms. Some courts have allowed video surveillance even in these areas,” explains Lewis Maltby, President of the National Workrights Institute (and author of Tell the Client’s Story – Mitigation in Criminal & Death Penalty Cases)
Note that, depending on your state’s laws, you may not be allowed to set up audio, while recording is within your legal rights as an employer. Still, Inside Counsel recommends taking the following precautions:
- Clearly mark cameras.
- Create and distribute a surveillance policy.
- Consult with your legal team before placing any cameras.
- Restrict your use of “hidden cameras.”
Some organizations still feel nervous about monitoring with video, in which case, you can take extra precautions to keep certain rooms, filing cabinets and other spaces locked, reducing the likelihood an employee would access it.
The key is finding a lock that’s up for the task, giving you peace of mind and improved security. “The demands of commercial locks and security hardware are quite different than those of their residential counterparts. The increased need for strength, logistical flexibility, and systematic security in a commercial setting demands that business owners and commercial locksmiths make use of specific types of hardware that the average Joe might not be familiar with,” according to The Complete Guide to Commercial Locks.
The most common of these locks is an auxiliary lock, which are commercial grade and can be custom fitted for various needs.
- Install GPS-Only Company Vehicles
If employees drive company vehicles, it is within your legal rights to monitor where those vehicles go. This goes back to “reasonable expectation of privacy again,” which is explained by Lillian Chaves Moon, of The National Law Review:
“Few courts have addressed the issue of GPS tracking in the employment context, although, most have held that employers may use tracking devices on company-owned equipment, where the employee does not have a reasonable expectation of privacy in its use.”
This monitoring is easy to implement with basic GPS technology attached to or within the vehicles. Most software available lets you see where employees have gone in the company vehicles, along with notifications for maintenance checks, low fluids and more.
- Be Cautious with Social Media
In our social world, many companies have policies for what employees can and cannot post about the organization on their social media pages. However, that doesn’t mean you, as the employer, can access posts that an employee has reasonable expectation of remaining private.
“An employer may be violating federal law if they access Facebook posts of an employee, when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to the employee’s Facebook friends, the employer is not a Facebook friend of the employee, and they access the posts without authorization, or intentionally exceeds authorization,” according to Social Networking and Computer Privacy.
- Keep Sensitive Documents Locked