Monitoring Employees without Getting Sued

As a business, you have to keep employees happy but still maintain workplace discipline. And it’s important that you protect your customers and your assets without making it seem you don’t trust your employees.

Companies employ a variety of methods to make sure their workers stay on task and aren’t goofing off. But you don’t want to be overbearing or act like a taskmaster in the process.

One way to monitor workers is by using modern technology to keep an eye on them. But there is a fine line between monitoring and invading their privacy, and you have to make sure you don’t cross it.

A 2017 study by the American Management Association and The ePolicy Institute found that:

• 66% of employers monitor employees’ internet connections.
• 65% use software to block employees’ access to some web sites.
• 43% monitor workers’ e-mail.
• 45% monitor the time employees spend on the phone and the numbers they call.
• 16% record employees’ phone conversations.
• 9% monitor voice mail messages.
• 7% monitor workers’ job performance using video surveillance.

Also, in certain industries, employers search workers’ workstations and lockers, perform drug tests and physicals, investigate their backgrounds ― and even monitor their activities outside of work.

When an employer disciplines or fires a worker based on the information it learned through one of these methods, the individual may become angry enough to sue the company for invasion of privacy.

How to keep lawsuits at bay

While federal and state laws generally permit employers to monitor workers’ activities and use of employer property, some suits succeed and all of them divert financial and human resources away from the employer’s main business.

There are several things you can do to avoid this:

• Establish a workplace policy about non-business phone and internet use, and include it in the employee manual. The policy should describe the extent to which you will monitor phone and internet use, if any, and the consequences should employees violate the policy.
  Ensure that employees are aware of the policy by discussing it at staff meetings and asking them to document that they have read it.
• Be careful about audio recording of conversations. While state and federal laws generally permit employers to use video monitoring of employees, some restrict the ability to make audio recordings or to listen in on conversations. You should become familiar with the wiretapping laws in your state before using audio monitoring.
• Keep employee e-mails confidential. Employers have the right to monitor their employees’ use of the business e-mail system, but making e-mails public (absent some legal or business requirement) may violate employee privacy rights.
• Include in the employee manual a written policy regarding employer searches of desks, workstations and lockers. This should describe your right to conduct searches, the reasons you may do so, and the consequences should an employee refuse to cooperate.
  Conduct searches only when absolutely necessary for business or legal reasons, and take care to respect the employee’s dignity by doing the search out of the view of other employees.
• Perform drug tests for legitimate business reasons and at appropriate times, such as during the hiring process and following a workplace accident. If you will administer random drug tests, you should have a written policy stating as much in the employee manual ― and you should conduct the tests with as little privacy infringement as possible.
• Obtain a job applicant’s written consent for a background check, and investigate only those factors relevant to the position. For example, a credit check may be appropriate for a position that requires handling money.
• Keep employee information safe from individuals outside the company. Instruct managers and staff not to discuss personnel matters with outsiders and employees who do not need to know the information.

The takeaway

Employers must run an efficient operation, maintain a safe workplace free of harassment, make employees feel comfortable in their work and make a profit. Following the above steps will reduce the chances of employee lawsuits and allow your business to focus on its core mission.