May 1, 2014

Surveillance in the Workplace- When Does Appropriate Monitoring Become Illegal Spying?

The line between an employer’s right to monitor the conduct of its employees and an employee’s expectation of privacy in the workplace has always been a balancing act.  In today’s digital age, the tension between these two competing priorities becomes more challenging.  Computers, and their concomitant access to social media, are essential to the operation of almost every conceivable business entity.

In general, employees have no legal expectation of privacy in their workplace activities, particularly in their use of company computers.  Employers are entitled to utilize reasonable methods such as video surveillance or computer monitoring programs to monitor employee activity on company time.  The right to monitor employee activities is not, however, unlimited.  For example, while employees do not generally have a right to privacy in office common areas, they do have such a right where such privacy would normally be expected, such as in a bathroom or locker room.  The placement of cameras or other surveillance equipment in those areas would likely be an actionable intrusion into employee privacy.

In a recent case, the New Jersey Supreme Court held that employees who access their personal email accounts on their work computer and conduct business that would otherwise be protected as confidential maintain their right to privacy.  Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010).  In Stengart, an employee accessed her personal email account through the company computers and exchanged emails with her attorney regarding a potential case she sought to file against her employer.  Her employer had installed monitoring software on her computer and was able to access and read the emails.  The Court held that those communications were protected under the attorney-client privilege.  The Court also found that the employer’s policy on personal use of the company computers did not clearly address this type of personal use of company computers.

There may also be some additional limitations on employee surveillance, such as provisions contained in union or individual employment contracts, or individual State laws governing such conduct.  Despite this, most businesses are able to implement effective oversight of  its employees’ conduct.  Employers should explicitly inform employees of the monitoring program.  In addition, employers should have a well-defined policy on the use of the employer’s computer network and electronic devices.  These policies, which may be contained in an employee handbook or individually distributed, should be given to all employees and should clearly and succinctly set forth the parameters of computer use and surveillance to be used, and the level of professionalism and focus expected of all employees.

It is equally important that the policies conform to applicable state laws and the nature of the business itself. For example, a web-based company might allow its employees to “surf the web,” including some personal internet use, without monitoring, while another type of company may discourage such activities.  Keeping policies relevant and up-to-date should be of primary concern, and employers may wish to contact an experienced employment attorney to assist in this process.