Technology makes monitoring employee activity—both on and off the job—easier than ever. But that doesn’t mean it’s always legal or advisable.
GPS and In-Dash Cameras
Many employers now use global positioning systems and, sometimes, in-dash cameras to increase efficiency, ensure compliance with workplace policies and protect company-owned property. For example, businesses may use GPS tracking to monitor employee travel routes and to verify that employees accurately record work hours on time sheets. Cameras also can help combat “distracted driving,” such as texting while driving.
To date, most courts have held that employers may use GPS-type tracking devices and dashboard cameras on company-owned cars when the employee is engaged in company business. Legal issues come into play when employees have a reasonable expectation of privacy—for example, during non-work hours and in their personal vehicles. Tracking employees off the clock can be an invasion of privacy, regardless of whether employees or employers own the equipment to which the GPS is attached.
Off-Duty Driving Violations
When employees are required to drive as an essential job function, they may be subject to disciplinary action if they receive moving violations. In some cases, this is true even if the employee is ticketed during non-work hours. So, if an employee gets a speeding ticket driving a child to school, he or she could be in trouble at work, too.
Employers who have a business reason for knowing about their employees’ off-duty violations should have a policy outlining what type of violations will be monitored and the consequences of any transgressions. For example, company policies might require an employee who drives a car for business to report all moving violations to a supervisor, or provide for termination of an employee who receives three or more tickets in three years.
Monitoring Social Media
Some estimates put the number of daily Facebook users in the United States at more than 150 million people. And, according to Twitter, people tweet more than 500 million times every day. As social media sites continue to proliferate, companies naturally are concerned about business-related employee activity on such channels.
Social media policies should make it clear that certain activities, such as disclosing proprietary information or harassing co-workers, are prohibited, and should spell out the related consequences. Employers also should inform employees that they should have no expectation of privacy in social media or other electronic sites the employee accesses using company devices or systems.
Although employers have the right to implement policies on employee use of social media in the workplace, the National Labor Relations Act protects employees’ rights to engage in online discussions about work and colleagues, to make generally disparaging remarks about their work conditions and to discuss wages, whether or not the company is unionized.
Computer, Email and Phone
Employers generally have a right to monitor employees’ communications while workers are on the job or are using company-provided devices—unless the monitoring violates an employee’s right to privacy.
Employers may track the Internet sites their employees visit and use software to limit which websites may be viewed or how much time employees may spend on certain sites.
Courts typically allow employers to read employee emails, unless the employer has indicated to employees that email messages are confidential. Even then, employers are permitted to read employee emails if an unambiguous policy informs employees that they have no expectation of privacy in any communication sent over company email. In addition, courts have rarely denied employers the right to read employee email if they have a business justification for doing so.
Monitoring phone conversations with customers for quality assurance purposes is legal in most states, though notification or consent may be required. But monitoring personal calls typically is off-limits unless the employer’s policy explicitly prohibits an employee from making personal calls from a company phone.
Monitoring Legally
The key to monitoring employee activity is to balance employees’ privacy rights with legitimate business concerns. To help prevent legal action by monitored employees, employers should implement clear policies, have solid justification for tracking employee communications and execute reasonable monitoring practices. Excessive, overreaching procedures are more likely to spark lawsuits from disgruntled employees and cause courts to rule that you have violated employee privacy rights.
Laws related to employee monitoring can be confusing. If you aren’t sure your monitoring policies comply with the law, talk with an experienced labor and employment attorney who can help you stay within the legal guidelines.
