How can businesses justify electronic surveillance

As a result government employees may appear to have a somewhat stronger claim for protection against electronic monitoring and surveillance than private sector employees. In practice, this difference in minimal. A key legal determination in cases of governmental invasion of privacy seems to be whether the government employee has a "reasonable expectation of privacy" in relation to the act in question.

Electronic Communications Privacy Act, 18 U. For instance, to the extent that thhey are considered the equivalent of public forums, usenets, newsgroups, listservs, and similar applications are not covered under the ECPA. The exception reads as follows:. Under this provision, most employers can be considered exempt from liability for ECPA invasion of privacy. It is possible, however, that employers may not fall under part b. If an employer contracts with a third party to provide Internet service, they may not be considered a "provider" of the e-mail service so as to qualify for the provider exception.

In practice, moreover, many employers routinely require employees to acknowledge—if not explicity sign away any residual rights—that the employer may monitor computer usage including internet and email access. Also, prosecution under state statutes has also been relatively limited. Members of s tate legislatures have attempted to pass bills that would strengthen the protections of workers against electronic monitoring in the workplace, but they have generally failed because of sustained and effective corporate lobbying.

A proliferation of suits has been brought against employers for tortious invasion of privacy. These suits tend to fail, however, for lack of an objectively reasonable expectation of privacy.

Even with a privacy expectation, if the privacy interest is outweighed by the countervailing legitimate business interests of the employer, the employee still loses. McLaren v. Microsoft Corp. L Tex. Dallas The court found that McLaren had no legitimate expectation of privacy in that the folder was stored on a company-owned machine and that emails had been sent over the company network and, therefore, could have been intercepted at any time. Pillsbury Co. Smyth v. See also Bourke v.

Nissan Motors Corp. Simons , F. As a general matter, however, when courts have confronted privacy claims made against private as opposed to governmental entities , they have tended to reach decisions similar to those made in the constitutional context.

Employer liability for invasion of privacy suits for monitoring employees? While private employers appear to have certain legal protections over invasion of privacy suits, the law in this area is new and evolving.

Up to now, courts have tended to treat the employment relationship as one in which employers hold the power to decide whether to monitor employee email or mouseclicks. The general idea has been that the employer owns the equipment, and can therefore set the terms of its use. Even under current law, which has been deferential to employer monitoring, this does not mean that employers are free to monitor or not monitor at will. It is not clear, for example, whether employers who fail to notify their employees that they monitor their mouseclicks will avoid liability for invasion of privacy.

Some states, for example, are considering such an approach. First, policies regarding proper use of technology in the workplace, and the means that will be used to monitor such use, are highly recommended. Experts recommend that the notice be as specific as possible by including what types of monitoring will be used, how frequently monitoring will occur, and what purpose the employer hopes to accomplish through the monitoring. Michael K. Although it is usually deemed legal, employers should at least consider minimizing the amount of electronic surveillance and general monitoring that they do.

Some research has shown a link between monitoring and increased psychological and physical health problems in employees. High tension, anxiety, depression, anger, fatigue, and musculoskeletal problems are all concerns.

In Swiss economist Bruno Frey found that certain forms of monitoring, instead of increasing employee efficiency and bettering their performance, actually negatively affected employee morale and hence, their performance worsened, as well. While it may not solve email-monitoring problems, some employers have implemented filtering of Internet sites that employees are allowed to visit.

How employees can protect themselves. The balance of power in electronic surveillance clearly weighs on the side of employers. There are few measures that employees can take to shield their computer use. Currently, Connecticut is the only state where employers are required to divulge to their employees when they are being electronically monitored.

It is unlikely employers would be willing to provide this information voluntarily if asked. Employees can also try to contract with their employers for more privacy rights. Your workforce of is demographically diverse, and your employees are trustworthy as a rule. However, you have experienced some unexplained loss of inventory and suspect a couple of employees are stealing valuable pieces, removing them from backroom storage safes and handing them off to another person somewhere in the store who leaves with them or to a third person pretending to be a customer.

To prevent this, your assistant managers are urging you to place discreet cameras in the restrooms and break rooms, where these exchanges are likely occurring. Some managers might be concerned about using cameras at all due to privacy issues; others might want to use them without notifying employees or putting up signs because they do not want to tip off the suspects or deal with the negative reaction of the workforce although that brings up invasion of privacy issues.

Key issues that arise about a drug testing or monitoring program begin with whether an employer wants or needs to do it. Is it required by law for a particular job, under state or local regulations? Is it for pre-employment clearance? Does a failed test require mandatory termination? With the exception of employers in industries regulated by the federal government, such as airlines, trucking companies, rail lines, and national security-related firms, federal law is not controlling on the issue of drug testing in the workplace; it is largely a state issue.

At the federal level, the Department of Transportation does mandate drug testing for workers such as airline crews and railway conductors and has a specific procedure that must be followed. However, for the most part, drug testing is not mandatory and depends on whether the employer wants to do it. Multiple states do regulate drug testing, but to varying degrees, and there is no common standard to be followed.

Testing of job applicants is the most common form of drug testing. State laws typically allow it, but the employer must follow state rules, if they exist, about providing notice and following standard procedures intended to prevent inaccurate samples. Testing current employees is much less common, primarily due to cost; however, companies that do use drug testing include some in the pharmaceutical and financial services industries.

Some states put legal constraints on drug testing of private-sector employees. For example, in a few states.

Challenging a drug test is difficult because tests are considered highly accurate. An applicant or employee can refuse to take the test, but that often means not being hired or losing the job, assuming the worker is an employee at will. The concept of employment at will affirms that either the employee or the employer may dissolve an employment arrangement at will i. Most workers are considered employees at will because neither the employer nor employee is obligated to the other; the worker can quit or be fired at any time for any reason because there is no contractual obligation.

In some states, the employee risks not only job loss but also the denial of unemployment benefits if fired for refusing to take a drug test. Thus, the key concept that makes drug testing possible is employment at will, which covers approximately 85 percent of the employees in the private sector unionized workers and top executives have contracts and thus are not at will, nor are government employees who have due process rights.

The only legal limitation is that, in some states, the drug testing procedure must be fair, accurate, and designed to minimize errors and false-positive results. The drug testing process, however, raises some difficult privacy issues. Employers want and are allowed to protect against specimen tampering by taking such steps as requiring subjects to wear a hospital gown. Case examples abound of challenges based on privacy concerns.

In one case, the court ruled that an employer engaged in unlawful retaliation as defined by the Mine Safety and Health Act. The employer dismissed two employees who were required to urinate in the presence of others but found themselves unable to do so. Monitoring of employees, whether electronically or through drug testing, is a complex area of workforce management. Numerous state and federal legal restrictions apply, and employers must decide not only what they are legally allowed to do but also what they should do ethically, keeping in mind the individual privacy concerns of their employees.

True or false? Advance permission from employees is required before they can be electronically monitored under federal law. If an employer is monitoring any device owned by the company, such as a telephone or computer, no advance notice is required. Workplace drug testing is completely prohibited in some states. No state completely bans drug testing. Some regulate it to make sure it is fair and accurate. There are at least two reasons a company might want to monitor Internet use at work: productivity and electronic security.

Managers do not want employees wasting time or exposing the company to breaches of data security, identity theft, or the legal ramifications of inappropriate or offensive behavior.

What are the two major exceptions to the Electronic Communications Privacy Act that weaken its protections of employee privacy rights? The two exceptions to the ECPA that weaken its protection are the business purpose exception, which allows monitoring if an employer can demonstrate a legitimate business purpose for doing so, and the consent exception, which allows employers to monitor employee communications provided employees have given their consent.

Since many employees feel uncomfortable being monitored, it's important to be forthcoming about what you hope to accomplish and how surveillance aligns with your business's goals.

In fact, transparency can make employees more willing to subject themselves to different methods of monitoring and tracking. Approximately 50 of 80 employees at technology company Three Square Market voluntarily had microchips implanted in them.

The chips allowed the employees to enter the building and buy lunch without keeping track of an ID card. Three Square Market's honesty about the purpose of the microchips led to over half of its employees voluntarily participating in the program. While Three Square Market's technology isn't widely used for tracking just yet, Amazon received a patent in for wristbands that vibrate when employees perform tasks incorrectly.

While there is no report of these wristbands being used or even produced yet, the company believes the wristbands could speed up processes. Detractors worry about the technology's potential to dehumanize employees.

Clearly, as technology continues to develop, organizations will have opportunities to track and monitor employees in new ways. As these new options arise, business leaders need to listen to employees and review legal guidelines for employee monitoring.

Another way employers can monitor employees, as mentioned earlier, is through GPS tracking, normally as part of fleet tracking and telematics on company vehicles. With most fleet software, managers can track where a company vehicle is and where it's been, even if the employee is off the clock.

Business owners can do this, as they have the right to know where their property is. However, GPS tracking of company devices like laptops and phones is another murky area, since employers can learn more than they need to about an employee's activity when they're off the clock. With any form of employee monitoring, it's best to err on the side of transparency and balance.

For example, clear signage citing your company's policy discouraging non-work-related computer use can cut down on undesirable behavior without the need to monitor employees overtly. Andreas Rivera and Bennett Conlin contributed to the reporting and writing in this article. Some source interviews were conducted for a previous version of this article. Spying on Your Employees? Better Understand the Law First. Max Freedman.

Employee monitoring technology is becoming more common in the workplace. Before you install it, be sure you know the laws surrounding its use.

Employers can use employee monitoring technology to track their staff's real-time locations and activities. The Electronic Communications Privacy Act of is a federal law that gives employers the right to monitor their employees' verbal and written communications under certain circumstances. There are also some state laws that regulate this activity.

Transparency in your employee monitoring practices is important to make your employees feel more secure and protect your business from potential legal action. This article is for employers who want to implement employee monitoring solutions and learn how to avoid legal issues in the process. What is monitoring in the workplace? Employee monitoring laws and regulations Federal and most state privacy laws give discretion to employers as to how far they can go with their employee monitoring programs.

Federal workplace privacy and employee monitoring laws Federal workplace privacy and employee monitoring regulations stem primarily from the Electronic Communications Privacy Act of State workplace privacy and employee monitoring laws As with any issue that states regulate, no two states have the same laws on workplace privacy and employee monitoring.

The most notable laws come from the following states: Connecticut: Any company that monitors its employees in the workplace must let employees know ahead of time in writing and detail the tracking methods used.

California, Florida, Louisiana and South Carolina: All these states' constitutions explicitly state that residents have a right to privacy.