The legalities of monitoring employee Internet and e-mail use
Feb 21, 2006 3:53 PM
Employees generally know that sending non-work-related e-mails, or surfing to personal-interest Web sites while on the job is not a wise idea -- either as a matter of common sense or because their employers have explicit policies regulating their computer and Internet use, Bradden C. Backer, a partner with Finerty, Friebert and St. John S.C. in Milwaukee, tells the Wisconsin Law Journal.
"Right or wrong, I've seen very little push-back from employees who are told that their e-mails might be monitored. And I think the reason is in line with what the courts have said about this: That everyone assumes employers have this right, especially on their own equipment," Backer says.
Attorney Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, D.C., disagrees. "If you reason that since it's the employer's equipment, they have the right to monitor, does that mean there's no expectation of privacy in the employer's restrooms as well?" he asks. "I think that in personal communications, and even for the use of the Internet, there should be some safeguards for employees' expectations of privacy."
Rotenberg adds that another concern with employers monitoring employee computer use is that it might be done along with a host of other invasive practices. The popularity of video surveillance of the workplace, along with testing employees for drug use, truthfulness or even genetic predispositions, is increasing steadily.
"Workers' rights don't trump everything. Certainly, businesses not only have the right but also the obligation to protect their assets, trade secrets, and customer and client interests, as well as to comply with federal law," Rotenberg tells the Wisconsin Law Journal. "But that doesn't mean, therefore, the people who work for these companies can have no privacy. That can't be the right conclusion at some level."
U.S. courts, however, have generally concluded that workers have no expectation of privacy in their workplace computer use, according to Backer. Some of the newer technologies, such as instant messaging, however, are a little murkier.
According to a 2004 survey from the American Management Association and the ePolicy Institute, 31 percent of respondents say they spend about 90 minutes per day on IM. In a separate question, 10 percent of the respondents said they spend more than half their workdays - four or more hours - on e-mail.
The same survey found employers reacting but probably not adequately. Sixty percent of the employers said they monitor incoming and outgoing e-mail, but only 27 percent said they monitor internal e-mails between employees. In addition, only 10 percent use IM/gateway management software to monitor, purge or retain IM.
With regard to IM use, much of it is inappropriate for the workplace, the survey additionally found. Of the respondents who indicated they use IM at work, 58 percent said they use it for personal chat; 16 percent admitted to using it to circulate jokes, gossip, rumors or disparaging remarks; and 6 percent said they had used it for sexual, romantic or pornographic content.
The answer for employers isn't an all-out ban on employees' personal use of e-mail, Backer tells the publication. "It would be impractical and unrealistic, not to mention difficult to enforce."
But "there's some point in time where an employee's nonwork use of e-mail becomes excessive. It's hard to know where to draw the line. But when someone isn't completing their work on time, that's when it might be time to check their e-mail."
This should be part of a written policy regarding employees' use of technology, which they should consent to, either upon the introduction of the policy and/or when new hires start. That policy should additionally put employees on notice that employers have the right to monitor their technology use. That includes potentially a home computer that was used for work as well, upon termination, says Backer.
On that note, Backer opines that employers should monitor only when they have a compelling reason, such as when an employee is not completing assignments on time. "I don't think it's necessary, or necessarily wise, to be checking people's e-mail like an automaton."
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