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Avoiding Claims for Invasion of Staff Privacy

Thanks to the information age, advanced testing and technology, it’s easier than ever for employers to monitor their employees to ensure they are doing their jobs.

While many employers ask prospective employees to submit to drug testing, physicals and even background investigations, others take employee surveillance to a whole new level by searching their workstations and lockers and monitoring their outside activities. Although the latter three items are highly questionable conduct for the average employer, employers must be careful how they react to information they glean from these methods, particularly if it’s used to fire or discipline someone.

If methods are questionable it could easily prompt an aggrieved employee to sue for invasion of privacy.

This is important to know, particularly in light of findings in a 2007 study by the American Management Association and The ePolicy Institute:

  • 66% of employers monitor their workers’ Internet connections;
  • 65% use software to block employees from surfing certain websites;
  • 45% monitor how much time employees spend on phone calls and which numbers they dial;
  • 16% record employee telephone conversations;
  • 9% monitor employees’ voice mail messages;
  • 7% monitor employees’ job performance using video surveillance.

To avoid being on the receiving end of an invasion of privacy lawsuit by one of your workers, you need to know what is permitted and what is not. The best way to protect your company is to:

  • Establish a policy about phone and Internet for personal use, and include it in the employee manual. The policy should describe the extent to which you will monitor phone and Internet use, if at all. The policy should spell out the consequences of violating this policy. To make sure your employees are aware of the policy, you should cover the policy (both verbally and in writing) at a staff meeting and have them sign a sheet acknowledging that they have read it.
  • Watch out for taping or tapping into employees’ phone calls. Most state and federal laws allow companies to use video cameras to monitor employees, but many have restrictions on making audio recordings or listening to conversations. Employees should expect to have the right to privacy on any personal phone conversations at work. If you’re still considering audio taping, you’d be wise to consult counsel and familiarize yourself with your state’s wiretapping laws.
  • Keep employee e-mails confidential. While you are generally within your rights to monitor your employees’ work e-mails on your company’s e-mail system, you should avoid making any of those messages public.
  • Formulate a written policy on searches of desks, workstations and lockers. You should touch on the company’s right to conduct searches and the reasons for doing so, as well as the consequences for an employee that refuses to submit to such a search. But beware, these types of searches can backfire on you and build an image of being a draconian employer, which is terrible for morale. You should only conduct a search if you have serious suspicions of what they may be hiding. Also, if you must conduct a search do so out of sight from other employees.
  • Only conduct drug tests for legitimate business reasons and at appropriate times, such as during the hiring process and following a workplace accident. If you decide to perform random drug tests, you need to spell this out in your employee manual. Again, it’s not wise to make any findings public or discuss them with the rank and file. And above all, avoid embarrassing any employee or making an example out of them.
  • During the hiring process you must obtain a job applicant’s written consent for a background check or drug test, and investigate only those factors relevant to the position. For example, a credit history examination might be suitable for a person applying for a position that involves handling money or paying company bills.
  • Safeguard all employee information you gather to ensure people outside the company cannot access it.
  • Instruct managers and staff not to discuss personnel matters with outsiders and employees who do not need to know the information.

If you follow these steps, you will greatly reduce the chance of invasion of privacy lawsuits.

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