Can you go too far?
Last week I covered some HR and workplace trends to pay attention to this year. One trend is wearable tech; those smart glasses, smart watches and wearable cameras. The focus was on how your employees may embrace these devices and the challenges you, as an employer, may face in dealing with those devices and how they’re used. But what about the flip side?
Workplace monitoring is not new and has certainly evolved. With the evolution of such monitoring comes the evolution of laws and regulations governing how and when an employer can monitor the workplace. Why do businesses choose to monitor? Should you monitor your employees? How can you do it? How far can you go?
The reasons for monitoring in the workplace are as varied as the methods used. Tracking and safeguarding productivity probably tops the list; loss prevention (anti-theft) is also a high priority. In more recent years, monitoring has become a way to prevent or stop illegal acts and harassing or discriminatory behavior, which can both be huge liabilities for any business.
Deciding whether to monitor your workplace is based on your assessment of the risks you face. Do you have reasonable concerns about loss of intellectual property or trade secrets? Is lost productivity due to wasted time a real issue? (A 2013 online survey by salary.com revealed that 69% of U.S. workers polled said they waste time every day when they are supposed to be working.)
If you decide that you have a compelling business reason to monitor your workplace, it’s important to have a well-written and clearly communicated policy stating what and how monitoring will take place, and removing any expectation of privacy within the workplace while using any company-owned equipment and/or vehicles.
For the most part, courts have upheld employers' rights to monitor employee email -- particularly if they have a compelling reason to do so (to investigate a harassment claim or possible theft of trade secrets, for example). One caveat is that if the employee is accessing her private, password protected personal email account; the employer’s right is normally quite limited. And we need to keep in mind that just recently; the NLRB ruled that employees can indeed use company-owned email systems for purposes of union organizing – at least until this is challenged in court, as is expected.
Employers may also keep track of the Internet sites visited by their employees. Some employers install devices that block access to certain sites (pornographic sites, Facebook, etc.) or limit the time employees may spend on sites that are not specified as work related.
Internet security. Anytime you go on the internet there’s always a chance that your firewall or security program could be breached. Your computer network may have highly classified information about the company, its resources, and its employees and customers. Any breach in security of your company's computers could be a major problem. We don’t have to look too hard to find examples of data breaches and HIPAA violations and the problems and costs of those breaches.
File or program corruption/incompatibility, intranet security. An employee decides to load a program he brings in on a flash drive or downloads from the internet, or he shows his co-workers his latest vacation photos. The next thing you know your system that depends on a particular internet browser is non-functional, or a virus has been introduced to the network and the whole system is down and information is lost.
Productivity. If employees are spending too much work time using the internet for personal activities this seriously interferes with productivity. It doesn’t matter if they are on Facebook, doing their banking, shopping, or talking to their spouse or friend on an instant messenger, it can affect their productivity in a major way.
Legal Risks. Visiting porn sites, gambling sites, illegal file sharing may be some of the most obvious legal risks. But there are risks of harassment and discrimination via use of email, instant messaging and the like.
Social Media. I’ve covered the ins and outs of using social media, whether for recruiting and hiring, or monitoring existing employees here and here. I covered a bit more under Off-Duty Conduct below.
Vehicles. It’s not uncommon for a company to affix GPS tracking devices on company owned vehicles; sometimes overtly, but sometimes not. GPS tracking is normally used to monitor travel routes, fuel consumption and to verify that work time and activity is being accurately recorded. The information gained from these types of systems can be money-saving to the company. If you determine there are points on a route that result in excessive idling (fuel consumption) or add unnecessary time or mileage to the route, you can make appropriate changes. It can also be useful to discourage or discover if employees are using work time and resources (vehicle) for personal activity.
Off-duty Conduct. This can get tricky. Thirty-one states have some sort of off-duty conduct law in place. Some protect broad categories of off-duty conduct, and some require that an employer show a connection between that conduct and the employer’s business before allowing adverse action against the employee for engaging in that conduct. For instance, Colorado’s law makes it illegal for an employer to terminate an employee because that employee engaged in any lawful activity off premises during nonworking hours unless the restriction: 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employee’s employment activities and responsibilities; or 2) is necessary to avoid or prevent the appearance of a conflict of interest with any of the employee’s responsibilities to the employer. Montana’s law states that employers are prohibited from refusing to hire job applicants or disciplining or discharging an employee for using "lawful consumable products" (such as tobacco or alcohol) if the products are used away from the employer’s premises outside of work hours, with certain exceptions for bona fide occupational requirements or a conflict of interest, similar to those covered by Colorado’s law. Point of interest: Maryland has no such off-duty conduct law.
Even with such laws, however, there are some circumstances that do allow an employer to consider off-duty conduct for disciplinary purposes. For example, an employer can discipline an off-duty employee who receives a speeding ticket while headed to the grocery store (a purely personal and off-duty activity). Many businesses have a policy stating that employees who use a vehicle in the course of their job must report all moving violations to their employer. Some policies include that receiving three or more violations during some specified period of time, can result in termination. Others have policies that applicants with more than a certain number of points against a driver’s license will be barred from employment.
Employers are generally entitled to take action when an employee is convicted of a crime. This normally requires demonstrating that the decision or policy is job related and consistent with business necessity. In fact, failing to take appropriate action could lead to a claim for negligent hiring or retention down the road.
What about other noncriminal conduct that carries a social cost? Think of the recent cases of Ray Rice, Adrian Peterson and other pro athletes. Can you fire an employee accused of domestic violence? Or someone who posts pornographic pictures of herself on Facebook or Twitter? How about the employee whose Internet comments and Facebook posts are chock full of racial slurs, or even just a lame but potentially insensitive joke? Ask yourself these questions:
- Has (or can) the off-duty conduct negatively affected the employee’s performance on the job?
- Has the off-duty conduct negatively impacted the morale of your other employees or caused a distraction resulting in reduced productivity?
- Has the off-duty conduct gone against your company’s stated mission and values?
If the answer to even one of these questions is yes, there’s a very good likelihood that disciplining the employee for that off-duty conduct will be legally justified. As always, you should document the reasons for whatever action you take including how the off-duty conduct negatively affected your business. And be consistent. And it’s never a bad thing to consult an employment attorney.