Employee monitoring, like surveillance, is a highly complicated and controversial way to gather information for an investigation. Employee monitoring can also invade an employee's privacy, and its legality depends on the reasonableness of both the employee's expectation of privacy and also your monitoring.

You should have a policy to address monitoring and other privacy concerns and it should be in a handbook or on an employment application. It should be signed by each employee to indicate that the employee understands and consents to the policy. Some companies also place the policy on log-in screens to appear each time an employee uses the computer.

 

You can find a sample privacy policy that addresses polygraph tests, monitoring, and e-mail privacy issues in the Business Tools area.

Here are a couple of tips about employee monitoring:

• Monitoring should not extend into highly private areas in the workplace, such as restrooms and lounges.
• Monitoring generally should be limited to the workplace. Only in the most unusual and rare circumstances should surveillance move beyond the workplace.
• There should be a clear relationship between monitoring and a business-related reasoning.

To show that any monitoring you do is clearly related to the ordinary course of your business, you must show that:

• Your monitoring policy is generally justifiable on the basis of your legitimate business needs.
• The subject matter of each monitored communication is one in which you have a legal interest.

If you want to monitor employees, but are unsure about the legality of doing so, consult your attorney to analyze your specific fact situation.

Telephone monitoring. Where possible, it is best to monitor only those telephone lines that, with the employee's knowledge, are dedicated exclusively to business use. You should strictly enforce your policies against the use of such business lines for personal calls.

Monitoring should stop as soon as any particular call has been identified as personal in nature. In all but the rarest of cases you should not engage in the indiscriminate monitoring of all incoming or outgoing calls on lines used by employees, even if there is reasonable cause to do so.

Do not bug employees' offices or otherwise surreptitiously intercept or monitor in-office conversations - you can't invoke the business use exception in connection with the interception of such oral communications.

Electronic mail monitoring. Employees have a reasonable expectation of privacy - make sure that your investigative methods don't violate that. You should issue a policy that establishes a legitimate business interest to monitor e-mail and that decreases any expectation of privacy employees may have in e-mail if you want to monitor it.