Increasingly more companies are using systems for the electronic surveillance and monitoring of their employees' activities. A 2001 survey by the American Management Association ("AMA") revealed that 78 percent of major U.S. firms monitor employee communications and activities on the job, which is double what the figure was in 1997 when AMA began its surveys. The communications and activities recorded and reviewed include telephone calls, electronic mail ("email"), Internet connections ("Internet") and computer files.
Employers cite many reasons for their use of these tactics: (1) legal compliance required in certain industries; (2) legal liability from claims of hostile workplace environment; (3) performance review of customer service personnel; (4) productivity measures by determining how much employee time is spent on non-business related activities; and (5) security concerns over protecting proprietary corporate information. The low cost of the monitoring technology also contributes to the growing use of workplace electronic monitoring. The ability to access an employee's electronic files if that employee were not available and the need to determine their bandwidth needs based on business-related activities are other reasons an employer might want to monitor its employees' communications.
On the other side of the coin are the privacy rights, ethical and practical considerations against monitoring employees' phone calls, emails and Internet use. Practical considerations involve some unintended consequences of electronic monitoring. For example, employee absenteeism can be avoided when employees do not have to miss work to take care of personal business. It may be cheaper for the company to lose a couple of hours than to lose a whole day of productivity from an employee. Electronic monitoring may also be counterproductive because it reduces employee morale and increases workplace stress. It may also result in psychological reactance, which is the tendency of people to rebel against restrictions on their freedom, becoming a self-fulfilling prophecy.
The Federal Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. § 2510 et. seq., prohibits the intentional interception, use or disclosure of any electronic, wire or oral communication or the unauthorized access to and disclosure of any stored wire and electronic communication. ECPA has three exceptions, allowing employers to (1) monitor business-related phone calls; (2) monitor communications with employee consent; and (3) retrieve and access stored email messages. Additionally, some state's constitution or laws could further restrict the type and scope of employee workplace monitoring. A common law right of privacy cause of action can be found in the privacy tort of intrusion upon seclusion claim. However, the courts tend to reject privacy claims based on an employer's monitoring of employee emails and other electronic activities. A few courts have held that an employee does not have a reasonable expectation of privacy in his workplace email communication. One federal court concluded that an employee has no reasonable expectation of privacy in his workplace email even when his employee tells him that such communications will not be monitored. And when an employer has a well-defined written policy which specifically informs employees of the employer's right to monitor communications and its employees are notified of this policy, a court is quite unlikely to find that an employee could have reasonably expected privacy. As long as the company does not violate labor and anti-discrimination laws, the employer can monitor its employees' emails and other electronic activities.
