Employees at work often spend time surfing the web using company resources, sending personal emails, or even making personal telephone calls on company telephones. Whether these actions are infractions often depends on the policies in place at the employee’s place of work governing employee use of these resources. But what if the employer actively tracks the employee use of these resources and looks at the content of the emails, websites visited, or even listens in on the telephone calls?
Employers can make the decision to monitor employees’ use of electronic resources for a number of reasons, for example, to confirm suspicions of corporate espionage, or to substantiate allegations of sexual harassment. The employer may also seek to make sure that employees are not getting paid and not doing anything productive all day. Whatever the reason, the question of how far the employer can go in this kind of employee monitoring depends largely on federal and state law.
In terms of recording telephone calls or other audio recording of employee conversations, employers should be careful not to violate eavesdropping and wiretapping laws. In Florida, it is illegal for a person to intercept or record a conversation without the consent of all parties to the conversation, unless the conversation takes place in a public place where there is no reasonable expectation of privacy. Federal law only requires one party’s consent to record a conversation.
If an email account is provided by an employer, then the employer is in most cases allowed to monitor the employee’s use of the account. This is generally the case with computers and internet access. However, an employer may be more limited when it comes to monitoring social media accounts that an employee uses for personal use, even when the employee accesses the account on a work computer. The federal Stored Communications Act may limit the kind of access an employer has to an employee’s social media accounts unless an employee gives the access to the account. Under Florida law, an employer can request an employee’s social media password, although there are steps being taken to make this an illegal practice.
Employers should remember that employees have first amendment rights to free speech. Therefore, if monitoring an employee’s social media posts, employers should be aware that if they take a negative employment action against an employee on the basis of a post, it could lead to a constitutional challenge. First amendment rights are not absolute and do not apply in every case, however, whether or not the challenge is successful, it could be expensive to defend the case.
If an employer decides to monitor its employees, it is important that the employer communicate this possibility to the employees prior to the monitoring. Employees who are aware that business email and internet use may be monitored are less likely to successfully argue that they have an expectation of privacy in the emails they send and websites they visit.
Contact Us For Legal Assistance
If you are an employer seeking advice on how to craft employment policies related to workplace privacy and employer monitoring, contact the experienced North Miami business attorney from Charlip Law Group, L.C. for a consultation. We are prepared to assist you with your case.
