Monitoring Employees' Computer Use At Work

By Laurie R. Jones, Esq.

With the explosion of computers in the workplace, more and more management personnel are met with the daunting task of creating a policy covering appropriate use of computers at work. The complaints of sexual harassment and discrimination originating from e-mail and visits to pornographic websites are increasing at an alarming rate. While not illegal, employees also can waste valuable time surfing the web or playing games while on the clock. Monitoring an employee's work habits has never been so difficult or necessary.

There are several legal concepts that restrict an employer from accessing an employee's computer or creating a surveillance of the employee's work area. The most daunting is an employee's right to privacy under the "intrusion into seclusion" cause of action. An employer may be liable for unreasonable intrusion into an employee's privacy if the intrusion is intentional and of such a nature as to be offensive to a reasonable person. In one Texas Supreme Court case, an employee's right to privacy was found to have been invaded by the employer when the company searched a locker on which the employee had used her own pad lock. The employee was awarded $100,000 in damages for the search.

In order to avoid any complaint of invasion of privacy when monitoring employees' use of computers, a clear policy must be in place and acknowledgement from the employees that they understand monitoring will occur is necessary. Employees must be alerted that the computers are company property and may be searched at any time at management's discretion. While passwords are often advisable to keep company information confidential, employees should be required to register their passwords with someone in management and be told that the use of these passwords does not preclude monitoring by the company.

Altering a password without permission should be grounds for disciplinary action. A monitoring policy should also state what is considered appropriate business use of the computer and what is not. A reference to the company's anti-discrimination and sexual harassment policies is encouraged. Finally, a review of corporate ethics and etiquette may be included to aid employees in using e-mail and the Internet appropriately.

In monitoring computer use and e-mail activity, only access these areas for legitimate business needs. Apply the policy uniformly and fairly to all employees. It is also encouraged to limit any disclosures of fact obtained to those within management with a "need to know." The actual content of an employee's e-mail is seldom relevant in determining whether a violation of the company policy has occurred; thus, begin by simply monitoring transactional information such as who the sender and receiver were, the duration of time on the Internet, and the location of access. By monitoring in this fashion, the employer limits its liability while retaining some control over its employees' work.

Laurie R. Jones, Esq., is senior consultant for Employment Practices Solutions, LLC. She can be contacted at lrj@epexperts.com.