Say you own a business that has developed a new product you think will blow your competition out of the water, but you have begun to worry that your employees who know details of the product might share the information inappropriately, or even use it to “trade up” to a better job with a competitor. Would you look at the employees’ emails?
If you did, you likely would be on the right side of the law, legal sources say.
Monitoring electronic communications that occur via employer-owned computers, computer networks and other systems is not only permissible but fairly common, according to experts in the field of workplace privacy.
“Employers are within their rights to monitor to make sure company systems are being used properly,” says Erin Lutkewitte Kilgore, a partner in the labor and employment group at Kean Miller.
But she adds that business owners have a responsibility to educate their workers about a company’s employment policies.
“Because many [workers] have an expectation of privacy, employers need to let them know that We own the systems … and we can and will access the systems to monitor [you],'” she says.
Lawyers caution that workplace privacy situations are seldom clear-cut, from a legal standpoint, and both business owners and employees should think carefully about what differentiates acceptable from unacceptable behavior.
“The best practice would be to have a written policy in place and share it with employees, but not all employers do that,” Kilgore says.
While any form of communication could become the subject of a workplace policy, in the Internet age, emails and social media postings tend to take center stage, Kilgore says. And the law that most commonly comes into play with regard to such messages is the Federal Electronic Communications Privacy Act.
The law supports worker privacy in that it prohibits employers from intentionally intercepting employees’ oral, wire and electronic communications. But as information provided by the Society for Human Resource Management points out, the law also contains important exceptions.
One provision of the law permits the monitoring of communications if the employer can show it has a legitimate “business purpose” for doing so. The fear of losing trade secrets could constitute such a purpose.
The second exception allows communications monitoring provided that employees have granted their consent.
Yet another part of the law that can work in the employer’s favor is the differentiation it makes between transmission and storage of communications. Some courts have ruled that while an employer should not view email messages while they are being transmitted, looking at stored emails is similar to searching through an employee’s files and, therefore, does not run afoul of the law.
On the other side of the coin, employers often do allow their workers considerable freedom to use company-owned systems for personal communications, and some laws address some of those uses.
Jennifer Anderson, a partner with the Jones Walker law firm who has experience in workplace issues, says the National Labor Relations Act actually protects employees in some such communications.
“The act says employees have the right to communicate with each other about their terms, conditions and benefits of employment,” she says. A business owner might not like it, but it’s legal.
Anderson cites as a hypothetical example a man and woman who are employees of the same company and have a conversation via email or Facebook about how much the company is paying them. They discover that the man is paid more for doing the same work, and they begin to speculate online that the business does not value women as much as men.
“That’s negative, and it makes your business look bad … but it’s protected activity,” Anderson says.
In a more serious, real-world example, the National Labor Relations Board in August ruled against the owner of a sports bar and restaurant who fired two employees after they criticized the company in a Facebook discussion. One of the employees had posted a complaint about a perceived error in tax withholding by the employer and called the owner a name. The other employee merely “liked” the first employee’s status, and both lost their jobs.
In its ruling the board noted that the employees’ actions had no implication with regard to the actual business of the employer. “The comments at issue did not even mention the [employer’s] products or services, much less disparage them,” the board said.
The ruling went on to say that the firings constituted retaliation for the workers’ “protected concerted activities.”
Anderson says the National Labor Relations Act can apply whether the parties in question communicate via email, post their feelings on social media or have a discussion at lunchtime.
She also notes that while people tend to think labor law applies only to unionized businesses, that is not necessarily the case. “Some provisions of the National Labor Relations Act regulate both union and non-union employers,” she says.