Is Employee Monitoring LegalNowadays, more and more companies are recognizing the need for an employee monitoring program. However, since this is not as common of a practice as security from outside attacks, it raises many new questions including legality and best practices.

Different countries have different laws regarding computer monitoring. Generally speaking, it is legal for employers to monitor employees by tracking company-owned vehicles or smartphones. According to incomplete statistics, laws in most countries allow the monitoring of employees in the course of their work day. Most countries believe that employers have the right to monitor employee performance and use of company resources for they pay for their work and they own the property.

Not only is it legal to monitor employees on their computers and online, there is no federal US law that requires employers to notify workers they are being monitored. So while it is a best practice to inform employees of the company’s right to monitor all activity on employee computers and disclose it in the employee handbook, companies are NOT required to do so in the US.

The US courts have tried to balance an employee’s “reasonable expectation of privacy” against the employer’s business justification for monitoring. According to Santa Clara University Professor of Law Dorothy Glancy, “There aren’t many cases, and they tend to go against the employee. Often, court opinions take the point of view that when the employees are using employers’ property–the employers’ computers and networks–the employees’ expectation of privacy is minimal. Glancy continues, “When courts take this view, if employees want to have private communications, they can enjoy them on their own time and equipment.”

A greater number of companies are monitoring their employees electronically. Active monitoring of employees has risen recently from 35% in 2001 to 80% in 2014 due largely to the increased awareness. However, the costs of data breaches, internal threats and theft, as well as inappropriate workplace behavior cases such as sexual harassment have been large contributors. Employee monitoring provides important data and information that can be used as forensic evidence in a court of law:

Legal Liability: With workplaces often being designed as shared spaces with open floor plans and cubicles, it is easy for employees to be exposed to materials viewed by their colleagues online. Employees who are unwittingly exposed to offensive graphic material on their office neighbor’s computer screen can result in a hostile workplace environment. This is in addition to any harassment that can occur both via work email and chats.

Legal Compliance: In regulated industries, electronic recording and storage may be considered part of a company’s “due diligence” in keeping adequate records and files. This can provide them with some degree of legal protection. It is similar to a company’s need to tape telemarketing activities and customer calls in order to protect the company.

Security Concerns: Protecting the value of intellectual property and electronic assets is a growing concern for companies. Data threat and data breaches can result in millions of dollars as well as damage to a company’s reputation both with its customers and in some cases with investors.

We provide you with impartial material to show you employee monitoring is legal.

United States

According to the 18 U.S.C § 2511 (2)(a)(i) “It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks”, employee monitoring is legal in the United States.

United Kingdom

According to the Part 3 Monitoring at work of The Employment Practices Code, employee monitoring is legal. For more details, please refer to the related articles.

France

According to the Franck L. v. Enterprise Martine, employee monitoring is legal in France. For specific articles, please look it up on the Franck L. v. Enterprise Martine.

Canada

According to the Personal Information Protection and Electronic Data Act (PIPEDA) of 2000 (Bill C-6), employers can conduct employee monitoring. For specific articles, please refer to related materials.

Australia

According to the Commonwealth Interception Act and the Privacy Act of 1988, Australian employers legally can conduct employee surveillance. For more details, please refer to related materials.

More companies are instituting employee monitoring to improve their internal security against insider threats, ensure adherence to company policies, and improve overall awareness about what is happening within the company. Utilizing the information above will at least get you started on the right legal footing.

To be safe, employers should always check with the local laws and maybe consult a lawyer before implementing a tracking system. This way, you have all your bases covered and you can properly notify employees of the new system.

*Please consult the laws in your local jurisdiction as they can vary in other countries. The information provided in this document does not constitute legal advice. You should consult an attorney that is familiar with the law of the state or locale involved regarding your particular concerns.


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