Monitoring Employees: Striking a Balance

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The monitoring of employees’ electronic communications can be undertaken for various reasons, and is now standard practice among most, if not all, employers. However, when undertaking such monitoring, employers must ensure that they both comply with legal requirements and do not unduly

affect their working relationships with their employees (see The Impact of Employee Monitoring).

The regulation of employee monitoring varies greatly between jurisdictions, raising complex issues for multinational employers. For instance, when an employer monitors all of its employees’ electronic communications in the course of multi-jurisdictional litigation, there can be a conflict between EC data protection laws and US document retention and production requirements. The US Federal

Rules of Civil Procedure require companies to retain all documents that may be relevant to pending and reasonably foreseeable litigation and then, during the discovery process, to search and produce all relevant records. Such an obligation can directly conflict with EC law, which allows individuals the right to object to the processing and cross-border transfer of their personal information. In addition, EU companies can retain information only for the period strictly necessary to accomplish the purpose for which it was collected.

In view of issues such as the above, this chapter:

Considers the applicable legal frameworks governing the monitoring of employees’ e-mail and internet usage in Europe (specifically, Germany, Sweden and the UK), the US and the Asia-Pacific region (Australia, Hong Kong, Japan, New Zealand, South Korea and Taiwan).

Provides practical guidance on complying with these frameworks (see box, Ensuring compliance: some tips).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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