Electronic Monitoring at the Workplace ? A Good Idea?

By Jikku John, Legal Counsel to Commissioner Aaron Demerson

As remote work becomes the new norm, employers should make certain that they stay vigilant about their employees? potential misuse of electronic equipment. Although signs of computer or internet abuse can be observed through a wide variety of means, employers should use extreme caution if they witness misuse of company equipment. While the rules for monitoring electronic equipment generally favor the employer, employers should still set forth strong written policies to combat the possible mishandling of electronic equipment.

Drafting the Policy

Employers, through their policy, can define their expectations about the use of computer or electronic equipment. While employers can construct their policy to allow for some amount of personal use (i.e., occasional use of company equipment for emails, use of electronic equipment for emergency situations, etc.), they should be aware that extensive flexibility could lead to abuse of the employer?s policy, ultimately resulting in lack of productivity, mismanagement of company resources, and potential for?monetary?loss.

When employers are drafting their policies on the use of electronic equipment, they should make certain that the policy is sufficiently detailed to explain that violation could affect continued employment with the company. In addition to defining computers, e-mail, internet, and so on as broadly as possible, employers should also define prohibited conduct with specificity.

Moreover, the policy should clearly explain that employers have the right to inspect company property at any time, and if the situation warrants, can revoke an employee?s access to computer equipment.?Employers, through their policy, should remind employees that not only potential job loss, but possible civil liability and criminal prosecution could ensue from the misuse of company property. Finally, employers should have employees sign and acknowledge the computer and electronic use policy and make it a condition of continued employment. For a sample computer, e-mail, and internet policy, see https://www.twc.texas.gov/news/efte/internetpolicy.html.

Potential Pitfalls

Although employers have great latitude in monitoring company equipment, they should make certain that the privacy rights of employees are valued. If during routine monitoring an employer realizes that an employee is disclosing obviously private matters (i.e., through e-mails, video conference, etc.), the employer should immediately forgo further review of such information, and refrain from sharing the information with anyone. If an employer observes personal, intimate, and private details about an employee?s life, and a reasonable person would find the disclosure of such information as offensive or embarrassing, the employer would be at risk for an invasion of privacy lawsuit.

If the employer identifies that an employee?s use of company property is against the employer?s policy, a more effective approach would be to document the employee?s violation and treat the issue as a disciplinary matter. If an employee is discharged based on computer or internet abuse, the employer should have a computer expert collect the digital and printed copies of the email messages or computer files which contain evidence of any violations. The evidence can then be used to defend against various kinds of administrative claims, such as an unemployment or discrimination claim.?