In this era of social media, BYOD (bring your own device) and Candy Crush, it’s not surprising employers want to monitor their employees’ productivity. But monitoring their computer usage and email can be a slippery slope to go down. Done incorrectly and the employer may not only face lawsuits but hurt morale among its greatest asset: their workers.
Employer monitoring is “becoming more and more common,” says Galen M. Hair, Partner at Varadi, Hair & Checki and Rocket Lawyer On Call attorney. “More frequently, however, employers are subject to lawsuits.”
When it comes to employee monitoring it often falls into two buckets: looking over email and watching employees’ behaviors online. In the case of email, companies can easily run afoul of the Stored Communications Act if they aren’t careful. “Employers cannot access email unless there is a legitimate reason to do it and the person has consented,” says Hair. “The question really becomes what consent means.”
According to Hair employers are largely safe and free to read employees email if the worker is given a company email account and they can make a legitimate business case for doing it. If the employee, however, is given say an iPhone and told he or she can use it for both personal and professional email, the employer could face a lawsuit if the personal email on the device is read.
In the case of social media, Hair says employers are allow to view public posts on Facebook and Twitter but they can’t try to guess or otherwise hack a employees password to see their private commentary. They can track what employees are doing online, but again the workers have to be aware the company is doing that.
From a legal perspective if an employer wants to monitor their employees then Hair says the policy needs to be stated up front, in writing and the employee needs to sign it before starting their employment with the company. “You want to figure out your monitoring needs …and then draft a comprehensive polity that employees will sign and explicitly consent to,” says Hair. “It’s very hard to bring a suit later on if the employee accepted the job based on the condition he or she will be subject to this monitoring.”
While the risk of a lawsuit is a big reason why a company may not want to monitor their employees and even bigger concern is the impact it will have on the workforce. After all, while there are bad apples in every lot, the majority of employees are there to work. “Everyone from the top down uses company equipment or personal devices throughout the day to stay in touch with family and friends whether it’s on social media sites or simply texting,” says Patricia Sweeney, human resource manager at Old Colony Hospice and Palliative Care. “Establishing a culture of making employees believe that they are being monitored absolutely sows the seeds for mistrust, poor morale and the overpowering attitude of elite-ism.”
Monitoring can be particularly dangerous as companies try to attract and retain millennials. That group will make up the majority of the workforce in the next 15 years and they’ve grown up using the Internet and social media 24 by 7, says Susan Heathfield, the guide to human resources for About.com. “Studies indicate if employees spend 3.5 hours a week online doing personal business that same employee is spending 5.8 hours on work stuff at home,” says Heathfield. If you establish an environment where the boss doesn’t trust his or her employees, it can easily create an 8-to-5 mentality with the workforce, she says.
Be careful what you wish for can also be applied to employee monitoring. That’s because you may have a top performing employee but email monitoring uncovers something about his or her personal life that you don’t agree with. That information, which is irrelevant to the job being done, could cloud your view of the person and strain the relationship. “As long as there is no reason to believe somebody violated their covenant with your corporation in terms of privacy, confidentiality and appropriate behavior in the workplace, then the company has no reason at all to stick their nose into the employees underwear draw,” says Mark Jaffe, president of Wyatt & Jaffe, the executive search firm.
Although the reasons are far and few between, there are some instances when a little snooping may help. According to Laura Kerekes, chief knowledge officer at Think HR, the human resources consulting company, it may make sense to monitor employees if they are suspected of breaking the company rules, are the subject of harassment claims , are suspected of stealing or handing over secrets to the competition, to name a few. In those cases, she says companies should conduct the monitoring during employee work hours and eliminate data that may be obtained that has nothing to do with work to prevent claims of infringement of privacy. “Simply put, have a solid business reason for monitoring that employee activity, clearly communicate the business practice up front to all employees and in some cases obtain consent to do so,” she says.
