Electronic Monitoring In The Workplace

Electronic communication technology has swept through the American workplace with breathtaking speed and has quickly become a predominant, if not preferred, method of communication for employers. While most employers would agree that the proliferation of the Internet and e-mail has had a positive impact on their business, many would also agree that technology has led to many unexpected difficulties as well.

For example, it is common for employees to use their company PC on company time to send personal e-mail messages to family and friends, to check stock prices or the score of last night's basketball game. In addition to innocent (while disruptive) electronic activity, employees may also use the Internet to e-mail, access or send harmful, or illegal information.

Not surprisingly, many employers are growing increasingly concerned with employees using their company PC for non-work related activities. As a result, an increasing number of employers are secretly monitoring the web sites their employees are accessing from work and scanning employee e-mails to ensure that those communications are work related. According to the American Management Association, 74% of all employers record or review employees' electronic activities. Approximately 54% of all employers monitor the Internet sites employees visit and 67% monitor employees' e-mail messages. ¹

Not everyone, however, agrees with employers secretly monitoring their employees' electronic activities. Many civil liberties organizations and politicians have joined forces to take a stand on the privacy of the American worker.

In July 2000, Senator Charles Schumer (D-NY) and Representatives Bob Barr (R-GA) and Charles Canady (R-FL) introduced a bill in Congress known as the Notice of Electronic Monitoring Act. The proposed legislation would require employers to notify employees of any electronic monitoring and provide annual notices to all employees of the company's electronic monitoring policy. Notices would also have to be issued whenever monitoring policies are changed.

In addition, the proposed legislation would require employers to provide notice identifying the form of communication or computer usage that will be monitored, the means by which such monitoring will be accomplished, the kind of information that will be obtained through such monitoring (i.e., whether computer usage not related to the employer's business are likely to be monitored), the frequency of such monitoring, and how information obtained by such monitoring will be stored, used or disclosed.

Importantly, the proposed legislation does not prohibit employers from monitoring their employees' electronic communications. Rather, the proposed law would require employers to inform their employees when they are being monitored. Not surprisingly, the bill has garnered significant opposition from business lobbyists claiming that the legislation, in its current form, would create a major compliance problem for employers. As a result, the bill is still pending in Congress and it is unclear when the House Judiciary Committee will mark-up the proposed legislation or whether it will be amended to address business lobbyist concerns.

Regardless of the outcome of the Notice of Electronic Monitoring Act, employers should implement an effective electronic communication policy which advises their employees of the permissible and impermissible uses of the Internet and e-mail. If nothing else, such a policy will serve as a deterrent for many employees who will undoubtedly think twice before visiting an inappropriate web site or sending non-work-related e-mails if they know that their employer is watching. An effective policy should, at a minimum, state:

• the appropriate business uses of the Internet, such as for research, periodic updates of business information or news, or for specifically approved-projects;
• the appropriate business uses of e-mail, such as for communication with supervisors and co-workers relating to business activities;
• the permissible personal uses of the Internet and e-mail (Note: an employer generally cannot prohibit the personal use of the Internet or e-mail during non-work time);
• employee expectation of privacy in any conduct in which they engage on the company computer. Employees should be informed that they should not have an expectation of privacy in any such conduct;
• the unauthorized use of company computers for engaging in activity that is not permissible under the company's general discrimination and harassment policy, such as sending inappropriate, offensive, racist, sexually suggestive or insulting messages or material;
• the importance of maintaining the confidentiality of company information;
• a procedure for reporting employee misuse of the Internet or e-mail system; and
• disciplinary measures for violations of the policy, up to and including termination.

Employers who have not implemented an electronic communication policy are encouraged to do so, using the above suggestions as minimum guidelines.

1 See Mark Libbon, "Bill Will Expose Snooping Employers--Workers Would Be Notified as to How and When E-mails and Conversations Are Monitored," The Post Standard, July 21, 2000, at A2.