Electronic Surveillance of Employees

Determining whether there is a “reasonable expectation of privacy” typically involves many factors, including the employer’s policies and whether employees were notified of a lack of privacy, how and whether these policies were regularly enforced, the sort of privacy right involved, the nature of the employer’s business interest, the nature of the employee’s privacy interest, the type of information involved, and the level of intrusion by the employer.

Federal and state laws specifically address an employer’s right and ability to monitor, save, record, access, or otherwise conduct surveillance of employees’ use of company electronic communication resources and systems.

Generally speaking, if an employer complies with the notice and consent requirements under these laws, and writes and distributes policies consistent with the laws, it will be difficult for employees to show a reasonable expectation of privacy in using company-owned electronic communication systems.

Employees do have some privacy rights at work. But while some of these rights are inviolate, others can be overcome if you give employees appropriate notice and disclosure and if there are compelling business reasons in the employer’s favor.

Outside his or her own workspace, a corporate officer or employee has a reasonable expectation of privacy to challenge a search if he or she has a “possessory or proprietary interest” in the area searched and there is a connection between this area and his or her own workspace.

There are alternative methods of ascertaining the honesty of salespersons that are less invasive of the employees’ privacy. An example of that would be a salesman providing misleading information. To assess this situation for example, the manager could use surveys of customers to find out this information.

Nowadays, many businesses use customer surveys rather than electronic surveillance to evaluate the honesty of their sales personnel.

There is little specific regulation of private-sector employers’ surveillance activities. The Electronic Communications Privacy Act of 1986 prohibits intercepting electronic communications but generally excepts business communications. An employer’s interest in monitoring his or her employees may conflict with the employees’ privacy interests. The employees’ interests may be asserted in a tort action for invasion of privacy. To succeed in such a tort action, an employee must show that he or she had a reasonable expectation of privacy in not being monitored.

Generally, if the employer can point to a legitimate and significant business reason for the surveillance, then the court may decide that the employer’s need outweighs the employees’ interests in privacy. The means of surveillance should not be extremely offensive—a court will consider the availability of less intrusive alternatives.

To further protect himself, an employer should inform employees that they are subject to monitoring—perhaps by setting up a highly visible surveillance system or distributing to all employees and job applicants copies of a surveillance policy, or both. Employees might also be given an opportunity to comment on the results of any surveillance.

With respect to innocent third parties (customers), they have to be informed that their conversations could be monitored, and they must give at least implied consent to the monitoring.Image

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