To snoop or not to snoop, that is the question. Employers might feel hesitant about spying on employees. It can give employees the impression that they aren't trusted.
Yet when employers find themselves in the midst of an embarrassing legal nightmare, monitoring employees may seem like a useful preventative measure.
But is it legal to spy on your employees? The answer may depend on how you're spying on them, and where your business is located.
Generally, employees have no privacy rights to their emails at work. Federal wiretapping laws allow employers to read email with employee consent or in the ordinary course of business, if the employer has a legitimate business purpose.
Many employers now have email systems that copy all email messages to check for productivity, illegal use, and other legitimate concerns.
If the computer system belongs to the employer, then the employer is allowed to monitor employee communications, as long as they have a valid reason for it.
Like reading email, video-only recordings of employees are generally legal, but they must be used for a reasonable purpose. Legitimate reasons include preventing theft, maintaining security, and measuring productivity.
Currently, federal law does not require employee consent for video monitoring. The employee doesn't even need to know about it.
Many state laws, however, have restrictions on where, how, and why an employer may record employees. In fact, courts have sided with employee privacy if the practice is physically invasive, such as hidden cameras in a bathroom.
Note that labor unions often negotiate limitations on video recordings of unionized workers. Video recordings can't be used to monitor union activity.
Regardless of the reason for use, employers must let workers know that cameras are being used in the workplace.
Audio recordings are a different story, however. Under wiretapping laws, it's illegal to record oral communication in a surreptitious manner without one party's consent. In about 15 states, it's illegal to record audio without both parties' consent.
Social Media Surveillance
Many companies have social media policies that restrict what an employee can post on social networking sites about the company. It's important that social media policies not be overly broad -- especially when it comes to union or unionizing activities.
A number of states make it illegal for employers to discipline an employee based on off-duty activity on social networking sites, unless the activity can be shown to damage the company in some way.
Bottom Line: Put Your Policy in Writing.
Even if an employer's actions are legal, it's important for companies to have a written policy, accompanied by signed employee agreements, which clearly communicate to employees that they are being, or can be, monitored.
The policy should spell out who, what, when and where an employee can be monitored. But because laws about worker surveillance may vary depending on where your business is located, it may be wise to consult an experienced lawyer near you.