The Eavesdropping Employer

The Eavesdropping Employer:
21st Century Employee Monitoring

Your employer is watching you! Everyone sort of already knows this, right? But you may not know the extent or the reasons why. This short post introduces the topic and (hopefully) nudges you to learn more about your privacy at work. The bottom line is that monitoring is an important business tool to manage risk and ensure productive and safe workplaces. Employers should monitor their workplaces. Problems arise, however, when monitoring practices are excessive and lack transparency. Let’s dive in.

Employers monitor their people for many very good reasons:

• To make sure the workplace is free of harassment – employees should not have free reign to bother or harass their unsuspecting colleagues
• To make sure work gets done – employers provide compensation in exchange for hours
• To make sure their equipment is used properly – they own it, and so they can and should monitor it
• To keep important information confidential – for example, trade secrets lose all value when exposed
• To avoid lawsuits and investigations – think: harassment (sexual or otherwise), breach of duties, SEC investigations

There are other good reasons why your bosses may monitor your behavior at work as well. In the end, employers face serious legal and business risks for unlawful and unethical employee behavior. Courts and shareholders rarely look kindly on excuses such as, “Well, I wanted to respect my employees’ privacy . . .  so, I neglected to notice that pornographic emails were circulated, or trade secrets revealed to a competitor.”

Employee monitoring is generally legal, ethical, and a best practice. However, serious problems occur when monitoring is excessive / completely hidden from employees. For example, contemporary technology provides the ability to literally monitor every second of an employees’ workday and often employee behavior after work as well. Here are some examples:

• RFID tracking chips in “smart ID cards” monitor us at work and go home with us
• Email monitoring software on employee laptops monitors us at work and goes home with us
• GPS tracking on company vehicles monitors us at work and often go home with us
• Company provided cell phones monitor us at work and go home with us
• Video monitoring throughout the office and related company property (like parking lots) watches over us on our way in to work as well as on our way home

Again, none of this technology is bad, per se. It’s all just very invasive when used to its maximum effect. The problems with overuse are many. Excessive monitoring is a morale killer. Employees want / need to feel trusted at work. They work better when they have the freedom to move about the office and be productive without feeling watched by the bosses. The panopticon effect is real.

Employers overusing the technology also face invasion of privacy claims. Though harder to prove than most people think, courts will entertain these claims for excessive monitoring. The test is basically: did the employee have a reasonable expectation of privacy that was violated by the monitoring practice? Would a reasonable person in the employee’s shoes feel like is privacy was violated by what the employer did? These tests are easy to meet when it comes to cameras in bathroom stalls, strip searches at work, monitoring of personal phone calls, and random searches of locked offices, purses, and desks. Yes, these are all real cases!

The claims are harder to prove when the monitoring is invasive but not unreasonably so. However, there is still a likelihood of losing an invasion of privacy lawsuit for keeping tracking software on after hours or monitoring employees’ off-duty behavior. Some jurisdictions even ban these practices.

So, what are the best practices for employers interested in a safe and productive workplace but unwilling to open themselves up to lawsuits and awful morale? To me, the solution is simple. Monitor reasonably and disclose what you are doing and why – in understandable English – to your people. Businesses should have employee privacy policies that are short, concise, accurate, and understandable. They should go over the terms and practices with their people often.

The conversations may go like this:

• “We want to keep our trade secrets safe and so we will monitor your phone calls from time to time to make sure our people are doing their best to keep this information safe.”
• “We want our people to be free from a hostile and lewd workplace, so we will monitor your email for these types of unlawful messages.”
• We want to keep the physical workplace safe from threats, so we will monitor the premises (including the parking lots) with cameras to make sure only people who are supposed to be here have access to our property.”

The idea is to tell your people what you are doing and why. Employers often balk at this because it gives away their advantage. And, that’s true . . . to an extent. If your bad actor-type employees know how you monitor, they can tailor their bad acts in different ways. But, privacy is always a trade off between ferreting out bad actors and making people’s work experience as pleasurable and productive as possible. We see this trade off every day at airports across America. I’ll leave it to you to determine if you think the TSA has found the proper balance.

In the end, I hope this post has convinced you that monitoring employees is not necessarily a bad thing. Like most things in life, it’s the excesses that get employers in trouble and make their people uncomfortable. There is a balance, however. At that point lie the best monitoring practices. So, monitor your employees to keep the workplace safe, keep your important information confidential, and avoid lawsuits. But, at the same time, please tell your people much about what you are doing and why. Keep it in understandable English and be transparent. And, perhaps most importantly, hire the right types of people so you have fewer potential bad actors to follow around.

Want to go deeper? READ MY LAW REVIEW ARTICLE.

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