Page 2 | Employee Surveillance: Should You Be Watching?

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Employee Surveillance: Should You Be Watching? - Page 2

Written by Richard D. Alaniz

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Restrictions on Employee Monitoring

In some instances, employers can monitor employees without their consent. In many jurisdictions, the law still lags behind the technology, and there are some legal gray areas when it comes to monitoring employees. In several states, though, there is no debate-employee surveillance is illegal without employee consent. Currently, two states, Connecticut and Delaware, require employee notification if an employer is using electronic surveillance. Connecticut, California, Rhode Island and New York have laws on the books regarding an employer's use of video surveillance. Generally, federal law allows employers to monitor work-related use of telephone, e-mail and other communications. Some unions have also raised the issue of GPS and other types of employee monitoring in contract negotiations. It is a mandatory subject of negotiation where a collective bargaining agreement is in effect and the monitoring affects the union-represented employees.

In any case, if a company is considering installing employee surveillance devices, it makes sense to check applicable state laws to see what restrictions exist in your particular state.

Education

Even if the law allows employers to use surveillance methods without employees' knowledge, it's always wise to alert and educate employees about the fact that they may be monitored. The deterrent effect can help-employees will be less apt to take unauthorized breaks, leave work early, visit inappropriate websites or otherwise engage in unacceptable behavior if they know such behavior could be, or in fact is, being tracked.

Surveillance technology also carries a sense of "Big Brother is watching," and it can lead to ill will among employees, which may eventually take the form of potential legal claims. By creating reasonable policies and educating employees about them, employers can go a long way toward allaying employee concerns while enjoying the benefits of monitoring technology.

Employers should develop specific and explicit policies on employee monitoring, whether it involves e-mail, cell phone use or GPS tracking. The policy should remind employees that company vehicles, computers and any company-issued communication devices belong to the employer and are to be used for work-related purposes. Companies should also make it clear that they reserve the right to track employees to the extent legally permitted.

It may also be wise to spell out what is acceptable personal use of company equipment, and draw a clear line regarding what is excessive or inappropriate. It is generally not realistic, and may be legally unenforceable, to prohibit all personal use of phones, the Internet and the like during work hours. Even if employees may not legally be entitled to a reasonable expectation of privacy while driving company vehicles on company business, strict inflexible policies are likely to have an alienating effect.

Once a company has developed a policy, educating employees about the policy and the reasons for surveillance technology is the next step. If employees understand why monitoring devices are being used, they are more likely to accept them. Education on the topic should be ongoing, according to the American Management Association (AMA). "Most employees receive policies regarding use of office business tools and privacy issues on the first day of employment, but too often they don't read them. Employers need to do more than hand over a written policy," said Manny Avramidis, senior vice president of global human resources for AMA. "They should educate employees on company expectations and offer training on an annual basis."

Companies should also consider having employees sign a consent form when they are first hired or when a monitoring program takes effect. This protects companies in case an employee threatens legal action over invasion of privacy or some other matter related to monitoring.

Employee monitoring will become more common as technology improves and costs for surveillance continue to decrease. Contractors should certainly consider the potential advantages they could reap from surveillance technology in company computers and GPS systems in cars, service trucks and cell phones. At the same time, employers should bear in mind that the law is evolving, and it makes sense to research what is legal in each state.

Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz writes on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Alaniz at 281.833.2200.

Tags: 2009 July Issue , security