upon a time, monitoring
employees consisted primarily of sprinkling around a
few video cameras in the warehouse to detect
inventory pilfering. Times have changed: Today you
can harness "behavioral modeling" software to try to
assess employee productivity, using multiple data
inputs combing activity on their computers
(including web browsing activities), GPS data and
other information. One monitoring service vendor
boasts that you can "know what your employees are
doing every second of the year."
organization called the "Privacy Rights
Clearinghouse" maintains a laundry list of ways
employers can monitor employees. The list is
intended to help employees know their rights, but as
the information makes clear, their privacy rights
are limited. Consider:
Telephone monitoring. Under
just about any scenario, you can monitor employees'
telephone calls, either by recording them or tuning
in. Some states, such as California, require that
you give them a heads-up if you are recording calls.
Most don't. However, if you're monitoring calls and
you happen to listen in on a conversation that
clearly is personal in nature, you are obliged to
hang up. Yet if your company has a "no personal
calls on company phones" policy described in your
employee handbook, you can make note of a violation
of that policy.
Telephone records. You
can review logs of individual employees' calls by
the phone number dialed and the call duration.
Conversations among employees. Generally
these can be monitored on the same basis as
business-related telephone conversations.
Computer keystrokes and terminal monitors. Software
is readily available that allows you to do this, and
in general it's legal -- unless you have a formal
agreement with employees not to do so, of course.
The same applies to monitoring the amount of time
employees spend active at the computer.
email from and to employees who are using
company-owned computers is not private. That
includes Gmail, Yahoo or other such personal
web-based email accounts accessed via a company
computer. Employers also can review deleted email.
Text messages. You
generally can access texts to and from employees on
company-owned smartphones. Similarly, you can also
monitor the audio of calls placed on company-owned
Snail mail. Mail
addressed to an employee at the workplace generally
can be opened by the employer. However, this area is
somewhat murky; consult an attorney before
Video monitoring. As
noted earlier, this has long been a common practice.
Common sense exceptions must be made for places like
locker rooms and bathrooms, however.
Tracking employees via GPS systems. This
generally is allowed if their movements are based on
the requirements of their job, such as making
deliveries, taking checks to the bank, and so on.
However, it's best to inform employees that this is
Obtain Legal Guidance
It's a good idea to get a labor attorney to guide
you with respect to monitoring policies that may
seem particularly intrusive. In general, spelling
out your monitoring policies in your employee
handbook is a good idea so that employees have been
given fair warning. In some cases it might also be
wise to get their written acknowledgement of their
understanding of that policy.
Beyond simply protecting yourself legally, weigh the
pros and cons of each element of your employee
monitoring policy. Consider:
are the risks you are trying to reduce?
serious are those risks?
effective will the monitoring method be in reducing
will employees respond to the knowledge that they
are being monitored?
Don't Go Overboard
As James Madison famously once wrote, "If all men
were angels, no government would be necessary." Or
to quote a more recent U.S. president, Ronald
Reagan, "Trust but verify." Some level of employee
monitoring is generally required in all work
environments. Yet be careful not to take it too far.
If employees feel they are working under a
microscope at all times, many will, logically,
interpret this as the employer viewing them with
distrust. Believing that your company considers you
untrustworthy is anything but motivational.
To limit that effect, new employees and all
employees on a regular basis should be told how and
why your monitoring policy was developed. It should
be stressed that employees are valued and trusted,
and that monitoring systems can offer them as much
protection as the employer to the extent it keeps
any unjust accusations from being leveled against
For more detailed information, please call Robert
Puerto at 516-248-7361 or click
here to email Robert Puerto. He would be happy to
address any questions
you may have.
Thomson Reuters/Tax & Accounting