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    Employee Monitoring

          Monitoring of employees in the workplace falls under the federal Electronic Communications Privacy Act (ECPA) if that monitoring involves electronic communications and/or use of the telephone or voicemail. State constitutional protections may apply in cases of computer monitoring and video surveillance of employee work areas. Common-law invasion of privacy claims may also come into play in employee monitoring cases, although the plaintiff success rate with such claims is fairly low.

          — Generally, employers may monitor employees in the workplace if they have a valid business reason for doing so and give employees notice that such monitoring may take place.

          — Employees generally are accorded a lower expectation of privacy when using employer-provided communication devices such as telephones, e-mail, and computers.

          — Employee restrooms and other areas where privacy interests are greater carry a higher expectation of privacy and monitoring in such areas leave the employer more vulnerable to liability.

          — The ECPA prohibits the unauthorized interception of communications.

          — The person or entity that provides a wire or communication service can make such authorization, not just the employee. This exception may be available to employers who operate private e-mail systems.

          — Interception occurs when the contents of a communication are acquired during transmission.

          — The ECPA prohibits unauthorized access to stored electronic communications.

          — Electronic storage is the temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission.

          — The ECPA allows monitoring of telephone calls under certain circumstances in the ordinary course of business.

          — An employer may be required to provide notice that it is monitoring phone calls or electronic pagers.

          — Once an employer learns that a telephone conversation is personal, it must cease its monitoring.

          — Employees may consent to being monitored.

          — Video surveillance of common and open work areas is usually permissible.

          — State statutes may regulate employee monitoring more aggressively than federal law.

          — Employers may also monitor employee behavior outside of work, especially if such behavior negatively affects the employer’s business. The increased popularity of social media and blogs has made it easy for employees to publish disparaging remarks about their employers with the click of a mouse. Generally, there are no federal laws that specifically prohibit employers from disciplining or terminating employees who engage in conduct outside of work that harms the employer’s reputation or business. For example, general griping on Facebook or Twitter about an employer’s corporate culture or an unpopular boss may be valid grounds for action against an employee. However, such employee conduct could also be considered “protected activity” in certain circumstances. If that is the case, it may be unlawful to take action against the employee for such behavior. Before disciplining or terminating an employee for conduct outside of work, an employer should consider the following questions:

          — Is the employee discussing anything related to illegal discrimination, harassment, or pay practices?

          — Is the employee discussing any type of safety hazard or workplace violation?

          — Is the employee initiating any type of group or “concerted” action under the National Labor Relations Act?

          — Is the employee engaging in any “whistleblower” type of conduct?

          A “yes” answer to any of these questions does not necessarily mean that an employer cannot take action against the employee. However, if the answer to any of these questions is “yes,” an employer should conduct further research into the facts and the applicable law before disciplining or terminating an employee.

 © 2014 Thomson Reuters. No claim to original U.S. Government Works.