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.

RELATED: Do you have these items in your employee handbook?

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 info@sacsconsulting.com.

 
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  • Next up: How CEOs Can Help Power an Inclusive Recovery
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    Watch the latest webinar in the "But What Does It Mean?" series - GCP's Equity & Inclusion's webinar series devoted to translating research studies and data into meaningful action.

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  • Next up: How to Recognize and Handle Cyberbullying in the Workplace
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  • How to Recognize and Handle Cyberbullying in the Workplace

    Cyberbullying should never be tolerated, but it may be hard to recognize—especially in the workplace. Learn how to identify the signs and understand how to handle it once it is detected.

     

    It’s important to recognize the signs that an employee may be experiencing cyberbullying, which should never be tolerated in the workplace. Signs of cyberbullying are often subtle. Managers and company owners need to know how to recognize these signs, how to handle the situation and how to utilize methods of prevention.

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    Cyberbullying generally involves threats or mean comments that are clearly meant to hurt someone. Making fun of someone on-line in a cruel and hurtful way is a classic form of cyberbullying. People who cyberbully feel powerful and confident because they are doing it anonymously. 

    The main forms of cyberbullying are:
    Harassing someone 
    Impersonating someone
    Photo harassment
    Creating websites, blogs or other means of hurting someone thru social media channels

    Cyberbullying is most likely a situation that occurs when a person is being threatened, humiliated, embarrassed, tormented and hurt by another person using text messaging, e-mails, or any other type of digital technologies. Cyberbullies often post humiliating information.

    Some signs that an employee is being cyberbullied include:
    Exhibiting frustration, anger, or anxiety
    Having insomnia
    Exhibiting performance or productivity issues
    Being emotionally upset during or after using the Internet or the phone
    Being very secretive or protective of one's digital life
    Withdrawal from other employees
    Avoiding workplace gatherings
    Eating lunch or taking breaks alone

    The biggest difference between cyberbullying and face-to-face bullying is that the internet is available 24/7 and it can be invasive and inescapable. In a business situation, employees are protected by federal law if subjected to a hostile working environment, so it is incumbent upon you to make sure that they feel safe at work and this includes feeling safe on-line as well.

    You need to be aware of the frequency and severity of the unwelcome conduct, whether the conduct was physically threatening or humiliating, if it is interfering with work performance, if it is having a negative effect on the employee's psychological well-being, and whether the alleged harasser is their manager or superior within your company.

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    What you can do to help prevent cyberbullying is to offer employees and management intensive training about all forms of bullying, including cyberbullying. They need to know it is unacceptable in your company and will not be tolerated. Make sure that you clearly state the penalties for this behavior. It is no different than training employees about sexual harassment or any other unacceptable behavior. You also need to create a culture that allows a victim to feel comfortable coming forward to report cyberbullying, just as you would for any other form of bullying. And make it known that cyberbullying will not be tolerated in your workplace. It is an important and very positive message for you to send. 

    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 info@sacsconsulting.com.

     
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  • Next up: Is it Time to Bring Back Your Workforce?
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    Are you considering bringing your team back into the office? What will a post-COVID workplace look like? Take these guidelines into considerations as you plan your return.

     

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    The health and safety of the workforce should be your top priority and it must include a moral, ethical and legal concern for all employees and customers. New protocols may include deep cleaning and sanitization, rethinking the layout of the workspace, establishing guidelines for the use of personal protective equipment, and establishing rules governing when employees can return to work after recovering from infection should all be considered and evaluated.

    There are important considerations that you should be thinking about when making a decision to move forward. The most important aspect, and one that is going to be very helpful to you, is to develop a plan that takes the following into consideration:

    • Put people first and include considerations for risk and what controls you need to keep people safe and healthy while also keeping your business continuity and productivity.
    • Determine who actually needs to return to in-person work and who can continue to work remotely.
    • Focus on customers, workforce, and other factors in order to keep everyone safe.
    • Communicate changes and policies to everyone. Make sure all employees and customers know the rules and procedures going forward.
    • Have a plan to mitigate workplace illness. This may include contract tracing, following state and local guidelines, setting expectations, considering legal and operational risks for employees, vendors and customers.
    • Learn to operate under new conditions that may include rethinking how people work, your real estate footprint, new training, new tools, and more.
    • Plan work schedules with people in mind and make an effort to understand your employees’ needs.
    • Reevaluate your performance measures.

    RELATED: Read more by Tim Dimoff.

    Think strategically but be smart when determining what works best for your employees, your customers, and your business.

     

    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 info@sacsconsulting.com.

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  • Next up: Keeping PACE with the Market
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    In a recent webinar, we explored how Ohio-based commercial and industrial real estate project developers, energy service companies and contractors are financing energy efficiency and renewable energy projects using innovative Commercial Property Assessed Clean Energy Financing (C-PACE).

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    PACE refinancing or “Retroactive PACE” allows eligible improvements that have already been installed to be refinanced with PACE. 

    Watch the webinar below:

     

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  • Next up: The Civic Sector Role in an Inclusive Economy
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