Workplace Monitoring: Mind the Store or Mind Your Own Business? I’m in month four of what promises to be a long, expensive case. All of it could have been avoided if my client had monitored an employee’s email records. My client, a regional graphic design firm, was eaten from the inside out by a trusted employee who formed a competing business in secret and then poached my client’s best accounts while happily collecting a paycheck every two weeks. When enough accounts had been secured through promises of lower rates and equal quality work, the employee quit. He had my client’s best accounts and all their business documents in tow. As suspected, a scrub of the employee’s workplace computer revealed emails that created a paint-by-numbers picture of the months leading up to the end. The CEO says he’d suspected the employee was planning on leaving and was worried that accounts might jump ship, but felt helpless to do anything about it. The employee was a trusted and key player and my client was afraid to confront him. When I asked why no one had checked into the employee’s email use, my client responded, “Is that legal? I didn’t have any proof he was doing anything.”

Yes, it’s legal. And these days, the savvy employer doesn’t wait for proof, he goes and gets it. A good faith business reason is enough. And if you don’t do it because furtive measures make you feel like a snoop, you may find yourself in my client’s shoes -- sitting next to the court reporter at your deposition.

The concept of workplace privacy is extremely broad -- covering everything from telephone and email monitoring to lie detector tests and video surveillance. Most employers are concerned with what I call the Triumvirate: telephone, email and internet use. When used appropriately, monitoring the Triumvirate secures your most important business assets -- your customers and your data, whether it be pricing structures, manufacturing methods, marketing plans or something else. The bottom line is employers are entitled to control the workplace without liability for invasion of employee privacy, provided a balance is struck between an employer’s right to control and an employee’s right not to have his privacy unreasonably compromised. The right to control the terms and conditions of the workplace includes the right to monitor employees’ telephone, email and internet use for legitimate business reasons without employee consent. As a practical matter, though, getting your employees to consent in writing is ideal, but isn’t generally required, so long as the monitoring is done for a legitimate business reason in the ordinary course of business. I’ll get to what that means in a moment. Let’s start from the start.

It all begins with the expectation of privacy. As an employer, thing number one on the to-do list is to lower the expectation of employee privacy. Your employee handbook (and, if you don’t have one, I’m wagging my finger at you to get one) ought to contain a policy about the email, telephone and computer systems in the workplace. The policy should spell out in clear, direct words that these systems and equipment are the property of the employer and that employees should have no expectation of privacy when they use them -- that all communications, documents created, documents received and internet searches and use are subject to monitoring for legitimate business purposes. (If you don’t have an employee manual, a memo to employees setting forth this policy will do the trick.) Require that employees sign a document acknowledging receipt of the manual or the memo. Most courts accept a signed receipt of the policy as implied, and sometimes express, consent to monitoring, which goes a long way toward defeating after the fact claims of invasion of employee privacy. Once your employees’ expectation of privacy is earthbound, you have set the proper framework for lawful employee monitoring.

Workplace monitoring doesn’t mean playing Big Brother or Peeping Tom. What it does mean is that you have the right to confirm suspicions that your employee is searching for a job while at work, that he’s sending discriminatory emails, that he’s wasting half the day shopping on-line, that he’s soliciting your customers’ business for his start-up competitor, or that he’s downloading company files or private client data to a CD to take with him when he leaves. These are classic examples of a “legitimate business reason” I referred to earlier. Workplace monitoring is about securing assets --your customers, your information, your employee pool. It’s about assuring that your employees are living up to their end of the bargain. And it also has the potential to protect you from liability. Your customers have a reasonable expectation that you will protect the confidentiality of their business information. Failure to monitor those employees with access to client information exposes you to potential liability for failure to protect that information.

Now, the flip side. Despite a “no expectation of privacy” policy, employees do retain certain privacy rights and employers must take care not to cross the line. Workplace monitoring is not an invitation to be a voyeur. Monitoring for curiosity may be an unlawful invasion of privacy. Sometimes, the boundary is intuitive -- if a monitored telephone conversation turns private, cease monitoring. Sometimes, it isn’t so intuitive -- the Electronic Communications Privacy Act makes it unlawful to intercept wire, oral or electronic communications intentionally -- including email. What does this mean? Most courts have held that “intentional interception” means interception contemporaneous with transmission -- diverting the email before it lands in the employee’s inbox. Most courts have insulated from liability the employer who retrieves an email already stored in an employee’s inbox. And what about third parties? Remember that Maryland law prohibits recording telephone conversations absent consent of both parties, so even though your employee may have consented, if the person on the other end of the line hasn’t, you’ve committed a big no-no.

As technology continues to outpace the law, and it likely always will, the dividing line between lawful monitoring and invasion of privacy will continue to be a moving target, so, before you begin monitoring employees, consider consulting your attorney to assure you achieve a lawful and practical balance between your interests as the employer and your employees’ interests in privacy. Regardless of the state of technology, however, one rule of thumb will likely prevail: employers have the right to mind the store, but if you’re not monitoring to mind the store, mind your own business.

Labels: email monitoring, legitimate business reason, workplace privacy

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