New Concerns in Electronic Employee Monitoring: Have You Checked Your Policies Lately?

By Ford, Janet; Willey, Lorrie et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2015 | Go to article overview

New Concerns in Electronic Employee Monitoring: Have You Checked Your Policies Lately?


Ford, Janet, Willey, Lorrie, White, Barbara Jo, Domagalski, Theresa, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Employers have long had compelling reasons to monitor employees. For example, management at Los Angeles California City Hall discovered that employees were streaming the 2012 Summer Olympics over the corporate network while at work. Management's response: "Stop watching the Olympics at work!" (Winton, 2012). Events like the Olympics or the annual March Madness basketball tournament impact corporate networks during very specific times, but imagine an employer monitoring its network and discovering that every day employees are watching over 50,000 YouTube videos, streaming over 4,000 hours of music over the internet, or streaming movies from Netflix. This discovery, in fact, prompted Proctor & Gamble to shut down access to movies from Netflix and music from Pandora for its 129,000 employees (Schwartz, 2012).

Ensuring employee productivity is a major consideration to support the monitoring processes. But employers have also long been aware of the risk of legal liability or loss to which their organizations may be exposed as a result of inappropriate employee activities online (Papa & Bass, 2004). Lawsuits based on online harassment are typically cited as a concern that justifies employee monitoring, but these are by no means the only legal claims that can arise from employee activity online. In recent years, employee activity on social media outlets, along with employer responses to such activity, have increasingly exposed organizations to liability for unlawful discrimination (Gaskell v. University of Kentucky, 2010), violation of labor laws (Hispanics United of Buffalo, Inc., 2012), and even violation of securities laws (Bondi & Lofchie, 2011). In addition to legal liability for employee misconduct, employers are concerned about threats to their organization's intellectual property as vital data and information are increasingly stored in digital format that is easy for employees to access and distribute outside of the organization's protocols (Willey, Ford, White & Clapper, 2011). To support and justify employee monitoring, employers have adopted policies that attempt to define the limits of permissible employee online activity and identify forms of impermissible online activity that might expose the organization to legal liability or loss. As with all best business practices, it is not enough to simply develop an employee monitoring policy. Successful organizations regularly review and update their policies and review the enforcement of those policies to ensure that they are addressing current concerns in a way that complies with state and federal laws (Rozwell, 2012).

The monitoring of employees' emails, internet usage, telephone communications and social media gives rise to confusing legal responses. While some law supports the necessity of monitoring, other law exists to limit the electronic monitoring of employees to protect employee privacy, leaving employers between a rock and hard place. On top of these concerns, recent rulings by the National Labor Relations Board confound the problem for organizations by strictly interpreting monitoring policies that could impact employees' rights under the National Labor Relations Act. Additionally, numerous states have either enacted or are considering legislation that would limit the use of social media as a monitoring tool. It's time to take out those monitoring policies, dust them off, and be sure the organization's policies comply with law.

AN HISTORICAL LOOK AT ELECTRONIC MONITORING AND A LOOK AT RECENT TRENDS

Business organizations are able to use hardware and software to electronically monitor a wide variety of employee behaviors both in and out of the workplace. Attendance and facility use can be monitored using video surveillance and through employee badges where entry and time spent in various access areas is logged. In addition, new applications for physical access cards provide authentication and access to digital systems which may ultimately lead to the convergence of Information Technology (IT) security and physical security (Walls, 2012a). …

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