Electronic Communications: Employer VS. Employee Privacy Rights
To what extent can employers monitor their employees when it comes to electronic communication? It can be confusing but it's important you know your rights.
As a small business owner, it is important that you are knowledgeable about employee rights, even if you only have a few employees. Workplace privacy rights extend to all employees no matter the size of the business.
In simple terms, employee privacy rights are basically the rules that limit how extensively an employer can search an employee’s possessions or person; how much they can monitor employees’ actions, speech, or correspondence; and how much an employer can know about their personal lives. By its very nature, social media has increased privacy concerns and potential issues as people post, tweet or otherwise put personal information out into the electronic universe. So as a small business owner it can be confusing regarding what you can and cannot do regarding employee privacy rights. I will provide some general information and guidance, but when in doubt, always check with your attorney.
Electronic communication and social media are huge areas of concern when it comes to employee vs. employer rights. As a general rule, employers have the right to search through anything that appears on company computers, social media and the internet. So basically, as an employer you can review e-mails sent and received through your own server, but you cannot access an employee's personal e-mail account through a password that's stored on a work-issued device. It is important to have a policy that explains to employees how you monitor email and computers and that there is no expectation of privacy when using your computers or property.
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The National Labor Relations Board (NLRB) provides the following guidance:
• Company policies should not bar activity protected by federal labor law, like the discussion of working conditions or wages amongst workers.
• A worker’s social media comments are generally unprotected if they are minor complaints not related to a group activity with employees.
Employers also have the right to monitor telephone calls placed to and from their locations, but with limits. The Electronics Communications Privacy Act (ECPA) prohibits employers from monitoring employees' personal phone calls even if the calls were made or received on an employer's property. The Act also requires the employer to disclose the fact that calls are being monitored and makes it a civil liability for employers to read, disclose, delete, or prevent access to an employee's voicemail.
Employers have the right to monitor their employees by camera, including in a parking structure for both security and employee safety. However, employers are required to notify employees, customers, and all others in the range of the cameras that their property is under video surveillance. Video recordings cannot include audio due to federal wiretap laws. And cameras can only be used in areas where there is a legitimate threat of theft or violence and never in break rooms, bathrooms or locker rooms.
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As always, there are some exceptions to all of these rules, especially when electronic communications are involved. Make sure you think about who is setting up your business' social media accounts and make sure that they and you have a clear understanding upfront about who is granted access to those accounts and what rights your employees will have with regard to those accounts.
President, SACS Consulting & Investigative Services, Speaker, Trainer, Corporate Security ExpertTimothy A. Dimoff, CPP, president of SACS Consulting & Investigative Services, Inc., is a speaker, trainer and author and a leading authority in high-risk workplace and human resource security and crime issues. He is a Certified Protection Professional; a certified legal expert in corporate security procedures and training; a member of the Ohio and International Narcotic Associations; the Ohio and National Societies for Human Resource Managers; and the American Society for Industrial Security. He holds a B.S. in Sociology, with an emphasis in criminology, from Dennison University. Contact him at email@example.com.