Today's HR Daily Advisor Tip:

Workplace Electronic Monitoring: What's Legal? What's Not?

Yesterday's Advisor briefed you on the subject of electronic surveillance of your employees. We summarized the pros and cons of looking at your employees' e-mails, instant messages (IMs), and other communications, both in terms of productivity and morale.

But there's another whole dimension to consider: The legalities involved.

A briefing on that part of the subject came from attorneys Anthony J. Oncidi and Christopher Wolf, partners in the national law firm of Proskauer Rose, LLP, as they addressed a SHRM conference on workplace privacy. Much of their presentation involved the issues raised by new technologies and communications sent through these media, and also blogging—the keeping of an online diary for all to see.

The attorneys noted that there is no generalized right to privacy in the United States, but there is "an incomplete and often confusing patchwork" of laws, both federal and state. It is possible, however, to draw some generalizations.

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First, telephone calls (including voicemail) and e-mails are generally protected from monitoring by the Electronic Communications Privacy Act of 1986 (ECPA). However, employers can listen in to calls or check e-mails if:

--The employer supplies the system monitored, but not if it's an e-mail that travels via a third-party carrier, e.g. AOL or Yahoo.

--The employer has permission from one party to monitor the communication. (Some states, including California and Florida, require all parties involved to allow it.)

--The monitoring is part of normal business. That's what's behind the now-famous phrase, "monitoring for employee training or quality assurance purposes."

--Monitoring stops as soon as the employer realizes that it is a personal communication. (The time spent may still be logged.)

--The employer has given workers advance notice that calls or e-mails may be monitored, usually through a policy published in the workplace.

This last is key because privacy protections traditionally depend on whether a person has a "reasonable expectation of privacy" in their communication. Using the boss's equipment, on the boss's time, and notified in advance that monitoring may happen, it's pretty hard for workers to later maintain that such an expectation existed.

Blogging

The harm to employers from blogging comes when the authors, often writing anonymously but with their company's identity revealed through the blog's URL, reveal confidential business information, libel company personnel, or write comments that despoil a company's image.

The answer, say the attorneys, is to make a policy now regarding blogging. These elements should be part of it:
--Writers must identify themselves.
--Include a disclaimer that they are not speaking for the company.
--Ban harassing, discriminatory, or derogatory comments about anyone.