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Technology adds new questions regarding employee supervision

August 5, 2009 | Faculty

As the Internet and other technologies continue to advance, employers have more and more tools to monitor employees and research prospective employees. Whether reviewing online profiles or monitoring employees’ computer keystrokes, employers will face some tough decisions on what is appropriate and necessary. Professor L. Camille Hébert, an employment law expert, discusses some of the questions that have or may arise.

How are technologies affecting methods of employer supervision in the workplace?          

Employees have always been subject to supervision in the workplace, but new technologies are changing the ways that employers monitor employees both in the workplace and outside of the workplace, in part because employees are increasingly likely to work at home or conduct business during “off-work” time.  Among the new technologies being used are global positioning satellites to allow employers to track employee locations, biometrics to ensure accurate identification of employees, and computer software that tracks employee keystrokes, time spent downloading, and web sites visited. These types of technologies allow employers to monitor work-related activities of employees, but also allow employers to monitor personal activities that employees engage in.

Another reason that employer monitoring of employees and prospective employees may have increased is that employers have easier access to greater amount of personal information about their employees and job applicants. The rise in the use of social networking sites means that a great deal of personal information about employees and job applicants is available online. Individuals who blog or “tweet” about their personal activities or post pictures and messages on their Facebook or MySpace pages likely do not anticipate that current or prospective employers may gain access to the information on those pages – or the pages of their “friends” – but there are reports that employers are doing so and using the information gained there to make employment-related decisions.

A third reason that employer monitoring of the personal activities of employees has increased is that it is increasingly difficult to draw lines between work time and “off-work time.” More employees are now conducting work-related business away from the employer’s physical premises, either because of telecommuting or because employees communicate with clients, customers, and co-workers while on vacation or attending their children’s sports activities and music recitals.

What limitations, if any, do employers have while monitoring employees?

The law generally develops more slowly than do new technologies; accordingly, by the time that legislation and court decisions have the opportunity to weigh in new forms of employer monitoring, technology has generally moved on. However, for the most part, courts have upheld the right of employers to engage in monitoring their employees during work time and even during off-work time if the employer can demonstrate a work-related justification for the monitoring. For example, courts have generally allowed monitoring of employee telephone calls and e-mail communications that occur while at work or while engaged in work-related activities. In addition, employers have been allowed to review the use and contents of employer-provided laptops and cell phones, even when that use reveals private and personal activities.

Although there is no general right to privacy protecting private-sector employees, some employees have been able to invoke state statutes and common law claims to challenge intrusive employer actions. For example, a number of states expressly prohibit employers from making employment decisions on the basis of lawful off-duty conduct, such as use of tobacco or recreational activities, while other states have provided protection against monitoring employees while engaged in personal activities – such as changing clothes or using the restroom – or while engaged in personal conversations.

What should employers keep in mind when trying to balance their interests with the dangers that monitoring poses to employee morale?

Even though employers face relatively few legal restrictions in monitoring the private and work-related activities of their employees or in inquiring into the personal lives of job applicants, employers should be reluctant to engage in increasingly intrusive types of monitoring simply because they can. Employers may believe that more monitoring means that employees will be more productive – or at least that employers will be able to discover factors that lead to lack of productivity. But this is not necessarily the case.  There is evidence that employees feel stress and decreased loyalty because of constant monitoring and atmosphere of distrust created by this type of employer conduct. When employers by their actions make clear that they do not trust employees, employees are much less likely to feel favorably disposed to their employers, and that demonstrated lack of trust may become a self-fulfilling prophesy. On the other hand, employers who treat their employees as deserving of trust and respect are likely to cultivate employees deserving of that show of faith.

Employees allowed to engage in a limited number of personal activities while at work may actually be more productive than employees whose activities are more strictly limited. An employee who feels free to make a personal telephone call while at work to check on a sick child at home or deal with another type of personal issue may actually be more productive than one who is distracted by personal issues that cannot be addressed during the work day. And a limited amount of “play time” at work – whether limited web surfing or personal conservations with co-workers – may provide employees with a mental break necessary to carry on with their work-related tasks.

What changes or legal battles do you foresee arising concerning employee monitoring?

It is unlikely that the law will become substantially more protective of employee privacy, at least as a general matter; the law seems to be going in the other direction as to most types of employer monitoring. But the courts and legislatures may feel the need to extend protection to certain types of employee communications and information, even when they occur at work or are stored on employer laptops and other property. For example, as more employee medical information is stored electronically and made available online, there may be efforts to shield that information from employer monitoring. One area of personal information in which courts and legislatures have recently provided protection – from employer monitoring and more generally – is with respect to medical information, including genetic information concerning employees, in the form of the Genetic Information Nondiscrimination Act of 2008.

Similarly, when employees have little choice but to receive and send communications on employer-provided equipment while traveling on business, courts may feel the need to provide protection to what may be intensively private information. For example, in a number of recent cases, employees have challenged employer actions of retrieving attorney-client communications from employer-provided laptops – often with the assistance of computer specialists after those communications have been deleted and those laptops returned to the employer. Although some of those cases have been resolved through use of the legal fiction that the employees “consented” to disclosure of those communications, other courts have expressed concern with that result. This may be an area ripe for the legislatures to address.