Monitoring employee communications on employer-provided technology

What is employee communication monitoring on employer-provided technology?

There are a growing number of technology tools available to employers to facilitate better employee communications. From email systems to messaging platforms such as Google Chat, Microsoft Teams, and Slack, employers are providing employees with these tools while wondering if they can and should monitor employees’ use of them. In deciding how and whether to monitor employees on technology supplied by employers, there are a number of things employers need to consider and steps they should take. Employers need to weigh the pros and cons of surveilling their employees.

Why should employers monitor employee communications?

There are a number of valid and worthwhile reasons to do so. By knowing how their employees are using the technology they supply, employers can ward off security risks and misuse of company resources. Employers can safeguard sensitive and confidential information, such as trade secrets and proprietary information, financial information, customer data, and employee records, from unwanted disclosure. Anti-harassment and discrimination laws apply to both in-person interactions and digital communications—employers may want to watch whether their employees are engaging in illegal conduct. From an employee performance standpoint, employers can monitor whether employees are using communication tools for excessive personal use, resulting in a loss of productivity.

Why might employers choose not to monitor employee communications?

There are also negative factors that employers need to consider when making a decision. Employers need to determine whether such surveillance aligns with their corporate values and employer brand. Employees may be unhappy being “watched” and feel that they are not trusted. In turn, they will distrust management and overall morale may decline. Employers trying to position themselves as an “employer of choice” to appeal to prospective employees may not want to develop a reputation for excessive employee surveillance.

What federal laws govern employee communication monitoring?

Employers will also want to consult with their legal counsel to make sure that their employee monitoring is legally compliant with federal and state law. The federal Electronic Communications Privacy Act (ECPA) prohibits the unlawful and intentional interception of any wire, oral or electronic communication and access to such information while in electronic storage. There are exceptions that are useful for employers. The provider exception permits employers to monitor electronic communications transmitted on its own proprietary email system. The business use exception applies when an employer is monitoring communications for a legitimate business reason. The prior-consent exception provides that employers will not be subject to liability for electronic monitoring when they first obtain employees’ consent.

Employers can legally read emails sent with a company email account and monitor activity saved on company-owned devices and shared drives and networks. Note however, that employers cannot read an employee’s personal emails and other accounts without their consent, even if log-in information has been stored on a company device.

The National Labor Relations Act may also restrict monitoring that interferes with protected concerted activity.

What state laws apply to employee communication monitoring?

Employers should also be mindful of state law requirements. Some state wiretapping laws require two-party consent to listen to and/or record an electronic communication. A handful of states, namely Connecticut, Delaware, Maine, and New York, have enacted legislation requiring employers to provide employees with notice of workplace monitoring. State privacy laws should also be reviewed.

What are the best practices for monitoring employee communications?

Employers who wish to monitor employees’ communications on employer-provided technology should consider doing the following:

• Be transparent about monitoring practices—communicate to employees what is being monitored and the purposes of monitoring
• Consistently monitor employees equally to avoid claims of discrimination or retaliation
• Have clear written policies describing when and how monitoring is employed and what data is collected
• Have clear written policies governing acceptable computer use, requiring employees to give consent for monitoring, and acknowledge they have no expectation of privacy
• Train staff, including managers and IT team members on lawful monitoring practices
• Limit monitoring to legitimate business purposes
• Store all collected information securely and limit access strictly to authorized staff members

Monitoring employee communications on company-provided technology should only be undertaken with careful deliberation and planning. There needs to be a balance between protecting company interests and respecting employees’ privacy. Employers conducting monitoring should regularly review their monitoring practices to ensure that they are lawful.