Workplace Privacy: Employee Electronic Communications
and Monitoring

Workplace Privacy: Employee Electronic Communications and MonitoringINTRODUCTION

Technological advances have given employees extraordinary access to information and revolutionary new ways to communicate in the workplace and elsewhere. Correspondingly, companies now have more sophisticated methods to monitor those communications and other employee activity. But, where should the lines be drawn between work-related and private activity?
Inadequate attention to employees’ electronic communications can lead to decreased productivity, poor quality work product, and increased exposure for employee misconduct. Excessive monitoring may lead to poor morale, union organizing, and administrative or legal challenges. Companies must be mindful of these issues when taking steps to protect the enterprise.

With the rise of blogging and other alternative mass media on the internet, companies must now be concerned about employee misconduct both in the office and at home. Mobile access to the internet combined with the explosion of popular internet journalism in the form of blogs means that employees can spread almost any information about the company, customers or competitors to anyone, from anywhere. Companies trying to regulate these communications find themselves at a crossroads between employee’s duty of loyalty to the company and employee’s right to privacy or First Amendment protection.

This chapter will first address the various laws that may protect employee privacy. These include common law invasion of privacy claims, violation of the Electronic Communication Privacy Act (“ECPA”), and employment laws. It will then discuss legal theories under which companies can be held liable for not monitoring employees or for the arguably extracurricular speech of employees. Finally, the chapter will provide affirmative steps to protect the company and the basic components of an electronic monitoring policy that can be tailored to companies’ unique needs.

By: John B. Lewis, Esq.
Baker & Hostetler, LLP

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