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Monitoring doesn’t mean end of privacy

Technology has changed the way we do business in the 21st century, as well as how we think about privacy and security in the workplace.

Privacy and security laws are rapidly developing to protect the privacy of our employees, customers and business partners, so as to keep the “wrong” people out of data, while allowing the “right” people in. This has resulted in many recent developments in laws related to employee workplace monitoring.

The interests of employers and employees are in direct conflict in workplace monitoring. Employers want to ensure that employees are performing their work productively, that job applicants are properly screened and that they are providing security at the workplace.

Employees, on the other hand, want to protect their own privacy, so they do not want their every activity monitored. Prior to undertaking monitoring activities, employers should be certain to consult an attorney to confirm that their employee monitoring methods are lawful.

The current case law offers employers directions that can help reduce or eliminate an employer’s liability. For example, the existence of written employee monitoring policies can lessen or eliminate an employee’s expectation of privacy, and therefore all employers should have such written monitoring policies as part of their formal written employee policies.

Privacy in employee monitoring can become more complicated in pre-employment checking, monitoring and investigating on-duty conduct, and regulating off-duty conduct. Job applicants generally have fewer privacy expectations than employees because they have a choice about answering interview questions, providing urine specimens or submitting to other screening tools during the application process. As one case determined, if the applicant views such screening as “an indignity to be avoided, they need only refrain from applying.”

Available pre-employment checks include consumer credit reports, investigative credit reports, prior conviction records, pre-employment drug tests, pre-employment medical screening, driving records, honesty and personality tests, and confirmation of Social Security numbers. Some of these areas are governed by specific statutes, and others have been the subject of case law determinations that define and limit the extent to which these pre-employment checks can be undertaken.

In contrast, employees have substantially fewer freedoms because they face a more difficult choice: intrusion or discharge. The new technologies available today make it possible for employers to monitor employees on the telephone, at computer terminals, by video surveillance, through tracking devices, and via e-mail, voice mail and Internet.

An employer’s right to monitor an employee’s off-duty conduct is very limited. California Labor Code 96(k) even authorizes the state labor commissioner to take assignments of “claims for loss of wages as a result of demotion, suspension or discharge from employment for lawful conduct occurring during non-working hours away from the employer’s premises.”

While there are certain instances where an employer could terminate an employee for actions that constitute a direct conflict of interest during non-work hours, this is difficult to prove, and a specific adverse impact on the employee’s job performance or business concerns must be shown before intruding into off-duty conduct.

A clearly written company privacy policy is the critical tool for an employer to monitor its employees. Privacy policies, once written, must be followed by the business. If an employer has a policy that certain conduct will not be monitored, the employer must comply with its non-monitoring policy. Similarly, the employer must comply with its monitoring policies consistently for all employees. The law related to employee monitoring is complex, and good legal advice in this area is important to avoid potential legal liability.

August 11, 2006
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