Tag Archives: employee privacy

Monitoring Employees Online

The internet is a wonderful thing, but privacy is, and always will be, an issue. Employers and employees should be aware that internet infiltration of the workplace occurs before and after a person is hired. In fact, as a recent Market Watch article points out, many employees are being checked out online both before and after they are hired. 

Screening Future Employees

Many human resources professionals use the internet to Google prospective employees. This is done as a background check to help screen out undesirable candidates. However, opinions on the ethics of this choice are mixed. Some feel that this practice is unethical, since it invades a person’s privacy while others believe that is it a way to show that the job candidate was properly checked out, in case problems arise in the future.

If you are planning to use Google before hiring, it is important to remember that you cannot refrain from hiring someone due to his or her protected status. Anything you learn 

about race, gender, religion, national origin, age or other protected details cannot be factored in. The more information you learn about a person through online Googling, the more vulnerable you come to being accused of considering impermissible factors when it comes to hiring. You should, therefore, weigh your choices carefully and restrict your search to limited information necessary to determine if the candidate is a good one. 

Social Networking in the Workplace
Once employees are hired, the Internet searches don’t necessarily stop for many employers. According to the Proskauer Rose report from 2011, approximately 27 percent of companies monitor employees’ use of social networking sites. 43 percent have had to take action concerning the misuse of social media, and 31 percent enacted disciplinary measures because of 

misuse.

Monitoring an employee’s social media posts to determine if they are sharing confidential information or comments about the company can help you to keep an eye on the press you are receiving, but like with pre-employment monitoring, there are some risks. Most notably, certaintypes of speech on social networks are considered to be protected by the National Labor Relations Act. You cannot fire an employee for certain types of social media behavior, so when you find commentary online and take action, you may be setting your company up for a lawsuit. 

The best way to protect yourself from bad social media postings isn’t necessarily to monitor employees and take action but is instead to be proactive about establishing a clear social media policy so employees will know what their obligations are. 

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Employer GPS Tracking: Is it Legal?

Employer monitoring of employees through the use of a GPS system is not a new phenomenon. CNET wrote an article about the growing use of cell phone GPS systems to track employees back in 2004. However, the legality of employers using GPS tracking is still an open question, especially as the Supreme Court has recently ruled that placing a GPS on someone’s vehicle is a search and is unconstitutional without a warrant.

The Legality of GPS Tracking

According to an article in The Huffington Post, the Supreme Court unanimously held that placing a GPS device on a suspect’s vehicle constituted a search of that vehicle. Before placing the GPS therefore, officers need to obtain a warrant so as not to be in violation of the Constitutional protections guaranteed by the Fourth Amendment.

This case deals with government intrusion into a person’s private use of his vehicle without a warrant though. It does not directly address the issue of whether an employer may use a cell phone- and especially one provided by that employer- to track employee movements, nor does it address whether employers can use GPS devices on vehicles.

A New York case that did tackle an employer’s use of a GPS, Cunningham v. New York State Department, came to a different conclusion. In Cunningham, the court said that an employer’s use of a GPS to track employee whereabouts was reasonable because the employer suspected the employee was lying and falsifying records.

The Takeaway

Unfortunately, the current case law does not provide definitive guidance for employers who are considering employee monitoring. The best option employers have is to tread carefully and to use GPS tracking only when obviously necessary and appropriate for limited purposes. Employers should also watch state legislatures and subsequent court cases for further developments on whether GPS tracking is permitted in the private sector or not.

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Video Taping Employees and Customers: Can You Go Too Far?

While Macy’s has come under fire recently in the news for installing privacy blinds backwards in order to allow employees to see into fitting rooms as customers try on clothes, this loss prevention method is only one in a long line of surveillance tactics and techniques used by businesses worldwide to stop theft and other behaviors that cost them money. In fact, Macy’s instituted the policy of installing their doors backwards in part because video surveillance of fitting rooms is generally illegal due to a reasonable expectation of privacy when changing clothes. While Macy’s tactic is likely a clear violation of privacy rights, video surveillance of employees is more of a gray area.

Can Employers Videotape Employees? 

Video surveillance of employees is far from an uncommon tactic. According to a 2007 survey conducted by The American Management Association, as many as 48% of employers have video monitors in place in order to prevent theft, while 7 percent of employers track employee performance through video monitoring. Of the employees that have cameras, 78 percent tell their employees about the anti-theft surveillance and 89 percent share with their employees that they are being monitored to evaluate performance. 

This video taping of employees is, for the most part, perfectly legal. The Electronic Communications Privacy Act of 1986 is the only Federal Act that deals directly with surveillance on a national level and it addresses only “communication,” which means that videos taken without sound are not typically covered by the Act. Even when ECPA does apply, such as in cases where videos record sound, employers generally are still permitted to surveil employees either if there is a legitimate business reason for doing so and/or if the employee gives express or implied consent. In many cases, the mere fact that the employee knows the video is being taken is considered to be consent. 

While federal law doesn’t prevent surveillance, some states provide protection to employees above and beyond what is offered on the federal level. For instance, Connecticut requires employees be notified before surveillance or monitoring occurs. The rights of employees and customers is also balanced against the right of employers to engage in surveillance when determining if video cameras are proper. The test generally comes down to whether those subject to surveillance or video taping had a reasonable expectation of privacy or not. Those customers or employees in a public area of a store, for example, generally don’t have an expectation that what they are doing is private since they are in an open public arena. Those who are in a dressing room, on the other hand, like the unfortunate customers in Macy’s, do have an expectation that no one will see them change clothes behind the closed door of a fitting room. 

Should You Video Tape Employees?

While you can video tape employees under the law (as long as you don’t go too far and take your cameras where there is a reasonable expectation of privacy) whether or not you should do so is a different question.  Arguments against video taping go beyond the possibility of damaging a trusting relationship with employees. There is also the risk of increased employer liability, as employees who believe that monitoring is occurring may have a reasonable expectation of aid in the event that they are harmed or attacked. Further, employers who have labor union employees may have additional restrictions to comply with as Colgate-Palmolive, 323 NLRB No. 515 (1997) held that refusal to bargain with unions on the issue of surveillance cameras was a violation of the National Labor Relations Act because the decision to install cameras was “outside of the scope of managerial decisions lying at the core of entrepreneurial control.”

Ultimately, the decision as far as whether or not to video tape is one that all employers must make based on their own judgment and the needs of their business. However, to avoid the bad publicity that Macy’s is getting, you should always err on the side of keeping the cameras out of the dressing room. 

 

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Facebook Firings: Can You Terminate Employees For Social Media Commentary?

 Establishing policies on social media and Internet behavior has long been a confusing issue for companies, but a recent spate of cases where employees have been fired as a result of Facebook postings has brought the subject to the forefront. As a result of growing controversy surround the issue, an AOL Jobs article indicates that the National Labor Relations Board has announced it will soon release guidelines shedding light on what employers can and can’t do when it comes to Facebook policies.  

The NLRB guidelines will come in the wake of a high profile case where medical technician Dawnmarie Souza was fired after implying on Facebook that her boss was a psychiatric patient. The comments were made on Souza’s personal page and were not made during work time or from a work computer. However, her employer, American Medical Response (AMR), had a policy prohibiting employees from making any negative comments on any social network about either AMR or its employees and terminated Souza for violating that policy. 

Souza appealed to the NLRB for help after her termination and in February of 2011, the NLRB told AMR that it’s overly inclusive policy was too broad a violation of its employees’ first amendment rights. AMR revised its policy, Souza left the company and the case settled for an undisclosed sum. However, the case didn’t provide clear guidance for employers on what is an acceptable social media policy or on what employers may or may not do as far as monitoring or limiting employee commentary on Facebook. The subject is clearly one of major concern to many employers and the NLRA guidelines will hopefully provide some important answers. 

Current NLRB Advisory Opinions

While many issues related to Facebook and employee rights remain uncertain, the NLRB has recently issued a host of advisory opinions shedding some light on when an employee’s Facebook gripes are and are not protected by the National Labor Relation’s Act. According to a General Council Opinion issued by the NLRB:

  • Employees’s Facebook complaints made only to family or friends, and not to co-workers, are not protected speech under the NLRA
  • Employee’s Facebook complaints that are just gripes and not complaints meant to generate any sort of group action are also not protected
  • Complaints on Facebook made to bring employee complaints to the attention of managers or made to initiate some type of group action are protected
  • Employee complaints on Facebook that come from comments and collective complaints shared by many employees are protected.  

While these general guidelines provide some guidance for employees and employers, much still remains unclear regarding when Facebook firings are and aren’t permitted. 

Employee Privacy Rights and Social Media Surveillance

While employee privacy rights are important, many believe it is equally important for companies to protect themselves from employees sharing insider information or doing harm to a company’s reputation with their social media or Internet behavior. In fact, statistics reveal that the issue of social media publicity is a growing concern. For instance, a 2007 Electronic Monitoring and Surveillance Survey conducted by the American Management Association indicated that 12 percent of employers monitor blogs in order to see what news or information is being shared about their companies, while an additional 10 percent monitor social networks. 

Employers concerned about their Internet reputations, however, must be cautious not to violate an employee’s Constitutional rights or rights under the National labor Relations Act. While there is no general “right to privacy” in the Constitution, first amendment rights do give everyone the right to engage in protected speech without undue restraint and NLRA regulations give employees the right to organize and to make their complaints about the terms and conditions of their work known. This means that, at least until NLRA guidelines are released, employers need to tread cautiously when it comes to firing employees for posting to Facebook outside of working hours. 


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