Bryan Cave Combines with Berwin Leighton Paisner to Form Bryan Cave Leighton Paisner LLP Learn More

Federal laws prohibit the interception of another’s electronic communications, but these same laws have multiple exceptions that generally allow employers to monitor employees’ email and internet use on employer-owned equipment or networks.  As a result, under federal law, if a private-sector employee uses an organization’s telephone or computer system, their employer is generally permitted to monitor their communications.  That said, once the personal nature of a communication is determined an employer’s ability to continue monitoring the communication may be curtailed.  For example, under the National Labor Relations Act, employers cannot electronically spy on certain types of concerted activity by employees about the terms and conditions of employment.

Although monitoring is broadly permitted under federal law, some states require that employers notify employees that they may be monitored.  Even in states that do not require notice, employers often choose to provide notice since employees who think that they are being monitored are less likely to misuse corporate systems.  It is good practice for an employer to have employees sign a consent or acknowledgment that monitoring may occur and to inform them that personal calls may not be made from particular telephones.

Employers may also monitor what an employee posts to social media.  Some states prohibit, however, employers from requesting that an employee provide his or her username and password to a social-media account in order for the employer to see content that was not published publicly.  This would include, for example, posts that were made available only to an employee’s friends, or personal network.  In addition, some states prohibit employers from requiring that their employees accept a friend request that would permit the employer to view friends-only social media posts.  Finally, some states prohibit monitoring of telephone calls on an employer’s telephone network without the consent of one or both parties to the communication.

~80%

Percent of employers who actively monitor their employees electronically.1

2

States that require private companies to provide notice to employees of electronic monitoring.2

15

States that introduced or considered legislation in 2016 prohibiting employers from requesting passwords to social media accounts.3

 

What to consider when crafting an employee monitoring policy:

  1. Does your organization publish an acceptable use policy?
  2. If so, does the acceptable use policy explain what employees may and may not do over the Internet while at work?
  3. Does the acceptable use policy explain the disciplinary consequences of violating the policy?
  4. Do you have the ability to block or otherwise restrict access to Internet sites that are barred under the acceptable use policy?
  5. Does your employee handbook make employees aware of monitoring?
  6. Does the state in which the employee works require single or dual consent for monitoring telephone conversations, and have your employees consented?
  7. If your organization monitors phone calls, do you have a policy to cease monitoring when a call is clearly personal in nature, and do you follow it?
  8. Have you considered whether an employee might be able to argue that they have an expectation of privacy to their work emails or to their work phone calls?
  9. Are you monitoring emails to or from password-protected personal accounts?
  10. Are your employees using their own computer equipment to send emails or view the Internet?

1. Romy Ribitzky, “Active Monitoring of Employees Rises to 78%,” ABC News (Apr. 18, 2017) available at http://abcnews.go.com/Business/story?id=88319&page=1.

2. National Conference of State Legislatures, State Laws Related to Internet Privacy, (last checked Dec. 31, 2017), http://www.ncsl.org/research/telecommunications-and-information-technology/state-laws-related-to-internet-privacy.aspx; these states are: Connecticut (Conn. Gen. Stat. § 31-48d) and Delaware (Del. Code § 19-7-705).

3. National Conference of State Legislatures, Access to Social Media Usernames and Passwords, (last checked Dec. 31, 2017), http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx.