Striking a Balance with Employee Monitoring

Employee monitoring is controversial, but experts say litigation trumps privacy.

HOW MUCH SHOULD EMPLOYERS MONITOR THEIR EMPLOYEES' COMPUTER USE AND E-ACTIVITY?

Employee monitoring is a workplace hot potato, steeped in controversy, no matter the industry. In most places of business, it's pretty well known that the employee will have Internet access. The larger isssue is that because of new tools, there is a blurring of work and home time, and the lines between the activities blend.

Excessive monitoring or rigid rules can drive away productive employees, especially those generation X and Y, who expect some freedom in structuring their workdays. Although most employers have come to terms with this new reality, the issue is still confusing on both sides.

From the employer's perspectivefear of litigation trumps privacy, says Nancy Flynn, executive director of the ePolicy Institute (www.epolicyinstitute.com) and author of The epolicy Handbook.

In December 2006, the Federal Rules of Civil Procedure were amended, allowing electronically stored information to be subject to discovery in federal courts.

If your company becomes embroiled in a lawsuit, you can take it to the bank that all of your company's e-mail can be subpoenaed,

says Flynn.

E-mail creates the equivalent of DNA evidence sitting on their computer system.

U.S. employers have the right to monitor employees' computer activity under the Electronic Communications Privacy Act, which has been interpreted to purport that employees should not expect any privacy on employer-owned computers.

The courts have been consistent in siding with employers

says Flynn.

Assume Big Brother is reading over your shoulder. If the company provides a cell phone, there is a good chance your texting is being monitored, too.

According to a 2007 survey conducted by the American Management Association and the ePolicy Institute, 66 percent of employers monitor Internet connections and 65 percent use monitoring software to block inappropriate software, up 27 percent since 2001. Forty-three percent of companies monitor e-mail, and 45 percent track content and keystrokes.

Likewise, more and more companies are monitoring blogs, just like this one.They are worried about,

breaching company confidentiality rules, giving away trade secrets or secret recipes, uploading videos that would embarrass the company,

says Flynn.

We've seen thousands who have been fired for blogging on their personal time, for content on their personal and social networking sites and YouTube videos.

How do you strike a balance in your monitoring policy? Flynn recommends businesses apply the three E's of risk management:

• Establish a written policygoverning usage, contect and retention of business records. Spell out when employees can communicate with family, domestic helpers, physicians and schools, and what constitutes a reasonable amount of time for personal communication. Expect the policy to evolve with the workplace.
  
• Educate your workforce on e-mail and Internet risks, policies and procedures. The 2007 Electronic Monitoring and Surveillance Survey found that 58 percent of employers fired employees last year for inappropriate e-mail or Internet use, some of which were an intentional violation of policy, and some not.

  You can't expect your employees to cooperate unless they know about it,

  Flynn says.
  
• Enforce the policy with disciplinary action and technology tools, and detail the consequences. While zero tolerance may engender resentment among employees, warnings and escalating consequences will protect the firm and its employees.

If you or a member of your team has a question regarding employee monitoring, please e-mail us at firstplacerightchoice@1stplacemployer.com and a trusted advisor will respond withing 24 hours.