High-Tech Monitoring Can Lead to Legal Tangles
Technology allows an employer to monitor employees' voice mail, email and Internet use, but monitoring raises a tangleof legal issues regarding employee privacy.
There are many reasons employers may want to monitor employees' use of these communication systems. Defamation,harassment, discrimination, and copyright, trademark, and patent violations are all areas of possible liability to anemployer that could result from an employee' s misuse of company equipment.
However, there are a number of federal and state laws to consider before making a decision about monitoring.
The Electronic Communications Privacy Act of 1986 regulates the monitoring of electronic communications, includingemail, and provides criminal and civil penalties against anyone who intentionally intercepts an electronic communication.
There are exceptions, including one for monitoring done in the "ordinary course of business" for the provider of thecommunication service or for situations where one of the parties to the communication gives prior consent.
The statutes allow the provider of the service to record the fact that the communication was made to protect theprovider from fraudulent, unlawful, or abusive use of such services. The disclosure of stored electronic communicationis permitted with the consent of one party to the communication or when incident to the rendition of the service or tothe protection of the rights or property of the provider of that service.
Some states have statutes that preclude an employer from monitoring electronic communications.
The Stored Wire and Electronic Communications and Transactional Records Access Act allows employers thatprovide email and voice mail to access the messages stored in their telephone and computer systems.
Court decisions generally have balanced the employer' s legitimate business needs against the employee' s expectation of privacy, says Mindy Novick, an attorney with Jackson, Lewis, Schnitzler & Krupman.
It' s best to adopt a written policy that identifies the proper use of company communication and states that the companymonitors employee usage. Novick recommends having employees sign the policy.
"You can even have your technical policy come up on the screen and have employees ' click' that they are aware of thepolicy and understand it."
She also recommends that everyone be trained to use email. People often do not understand how long emails can bestored or that the tone of an email message can be more easily misunderstood than spoken conversation.
"It' s a different form of communication. It shouldn' t be treated casually."
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