Last week, this blog featured posts about the growth and reported benefits
of workplace surveillance, as well as some of the legal risks
that can arise from surveillance. Workplace surveillance can run the gamut from conducting targeted email searches to investigate potential misconduct by a particular employee to using complex software programs
designed to detect theft, “cyberloafing,” or inappropriate internet usage by anyone in the workforce. As discussed in our previous posts, surveillance may create opportunities to decrease employee dishonesty and improve performance, but these potential benefits should be balanced against legal risks posed by the workplace surveillance.
As promised last week, this post focuses on some best practices and practical tips related to workplace surveillance. Regardless of the type of employee surveillance at issue, an employer should consider doing the following:
- Be Mindful of Where You Place Surveillance Tools: If your company does decide to engage in surveillance, be mindful of where you place tracking or surveillance tools and check with legal counsel on any applicable federal, state or local laws. For example, some areas, such as restrooms or changing rooms, are so private that they should be off limits for surveillance. In addition, some activities, such as union meetings, are off limits and should not be subject to any surveillance.
- Technology Policy or User Agreement: Employers should establish and distribute a clear, lawful employee technology policy or enter into user technology agreements with employees. The policy or user agreement should set forth the permissible and impermissible uses of workplace technology and social media and should explain when employees’ technology usage may be monitored. The policy or user agreement might also include the following:
- A reminder that technology usage on company provided or reimbursed devices is not private and may be monitored by the company;
- A prohibition or limitation on the personal use of technology on company time;
- A prohibition on using employer-provided or reimbursed technology to engage in unlawful acts, such as harassment, defamation, or the like;
<>oThe requirement that employees not use technology to disclose or improperly use the employer’s confidential information, trade secrets, or sensitive financial information;
- A prohibition or limitation on the use of technology by non-exempt employees outside of normal working hours to minimize “working time” for which such employees must be paid;
- A warning to employees that any endorsements of the company or its products or services must be truthful and disclose the employee’s affiliation with the company; and
- A requirement that employees agree to surrender company devices when employment ends and permit the company to remove any company-related data from an employee’s personal devices used for work.
- Conduct Narrowly Tailored Surveillance: An employer should have good business justifications for any surveillance and should narrowly tailor its surveillance to its business purpose. More specifically, a company should:
- Only conduct surveillance for legitimate business purposes, such as to decrease employee dishonesty, to promote productivity, to prevent or respond to inappropriate technology usage, and/or to investigate misconduct;
- Surveillance should be limited to a reasonable time, scope, and subject;
- An employer should only gather the information necessary to accomplish the business purpose and should not gather extraneous, personal information about an employee;
- When an employer identifies employee information as personal or otherwise irrelevant, it should cease reviewing the information; and
- Surveillance should be conducted with the guidance of legal counsel and by trained individuals.