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Email, Phone and Social Media Monitoring in the Workplace – Know Your Rights as an Employer

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Email, Phone and Social Media Monitoring in the Workplace – Know Your Rights as an Employer

By Caron_Beesley, Contributor
Published: June 27, 2012

Do you know how much privacy your employees are entitled to? For example, if you feel employees are abusing their work privileges, is it legal to intercept emails or phone conversations to find out what they’re up to and confirm your suspicions? Can you ask potential job candidates for their Facebook profile log-on information?

Here are some general guidelines that can help.

Screening Job Candidate’s Social Media Profiles

There has been plenty of coverage in the media recently about companies and public sector organizations asking job candidates for their Facebook passwords as part of the employment screening process. Many of the employers who do this are in law enforcement and are on the lookout for potential illegal activity. But businesses have also been known to use this approach to get a better handle on who they are about to hire.

Although there is no federal law prohibiting this, the Department of Justice considers it a crime to violate social media terms of service and enter these sites illegally. Asking an employee or candidate for their log-on information means you and that individual are both in direct violation of Facebook’s Terms of Service which states the following: “You will not solicit login information or access an account belonging to someone else” or “You will not share your password... let anyone else access your account, or do anything else that might jeopardize the security of your account.”

Many states are also now looking to make this practice illegal.

The Bottom Line: Simply asking for access to personal passwords is a clear privacy violation and is both offensive to the candidate and unethical. Employers and managers should also be careful they’re not accessing profile information to determine an employee’s religious, sexual or political views. If it’s determined that you used this information to discriminate against an employee, you may be found in violation of equal employment opportunity and privacy rules.

Monitoring Employee Social Media Activity in the Workplace

A recent report by Gartner suggests that by 2016, up to 60 percent of employers are expected to watch workers' social media use for security breaches.  Currently, no specific laws govern the monitoring of an employee’s social media activity on a company’s computer (employers are on the lookout for unauthorized posting of company content – videos, documents, photos, etc.). However, the U.S. National Labor Relations Act does address employee rights in regard to the use of social media and acceptable social media policy. There has also been a ruling against employers who fired workers for complaining on social media sites about their workplace conditions.

The Bottom Line: Provide employees with a social media policy and be sure to include information about what you consider confidential and proprietary company information that should not be shared. For more tips on social media monitoring do’s and don’ts check out this article from Small Business CEO: Considerations for Social Media Use in the Workplace.

Intercepting Email or Phone Conversations

Increasingly sophisticated ways of storing and accessing email have made it easier than ever for employers to monitor email accounts. But is this an invasion of privacy? The law is fuzzy.

The Electronic Communications Privacy Act (ECPA) of 1986 prohibits the intentional interception of “any wire, oral or electronic communication,” but it does include a business use exemption that permits email and phone call monitoring.

This exemption often comes under close scrutiny by courts, and includes several elements. Generally, if an employee is using a company-owned computer or phone system, and an employer can show a valid business reason for monitoring that employee’s email or phone conversations, then the employer is well within his or her rights to do so. Likewise, if employees have consented to email or phone monitoring (in their contract of employment, for example), then you may monitor their calls or emails.

But here’s the rub: the ECPA draws a line between business and personal email content you can monitor – business content is ok, but personal emails are private.

Tip: If in doubt, consult your legal counsel.  Develop and share a monitoring policy with employees (for example, in your employee handbook).  If possible, get them to agree to it. Courts often look at whether employees were informed that their calls or emails might be monitored in the workplace, whether there was a valid business justification for the monitoring, and whether the employer complied with established policy.

Related Articles

Useful Resources

·       U.S. Equal Opportunity Employment Commission: Prohibited Employment Policies/Practices

About the Author:

Caron Beesley

Contributor

Caron Beesley is a small business owner, a writer, and marketing communications consultant. Caron works with the SBA.gov team to promote essential government resources that help entrepreneurs and small business owners start-up, grow and succeed. Follow Caron on Twitter: @caronbeesley

Comments:

Hi Caron, Great article. Its crazy to think of how much time and attention we spend on our smart phones and how it has become such a normal routine.
The question of email, phone, and social media monitoring in the workplace, along with employee monitoring, has to be carefully contemplated whenever enforcement is to be undertaken. Ensuring that proper security protocol has been properly established, and put in place, will give business owners the peace of mind that they require to set their focus in moving their enterprise forward.
Thank you for a well written article Caron Beesle. We definitely heard a lot about employers asking for personal details like passwords for Facebook in the name of recruiting the right candidates. Some of the young hires didn't realize that it is an invasion of personal information and a violation as well. It is important that they are made aware that such demands by employers are unfair. Also it’s great, that you pointed out another important thing of informing employees of the level of monitoring that is taking place on company owned devices and computers. As most businesses small and big are already monitoring employees or are planning to monitor them, it is important that they have a common employee manual and a signed document stated they are informed! Tools like Net Orbit are highly being used by businesses like private firms, government, schools and colleges with a network of PC (s). The Net Orbit (Link removed here ) is another program in the market for desktop monitoring and keeping track of user activity. Apart from logging, screenshot capturing, monitoring, it has got content filtering and remote control features.
Though the idea of employers asking for Facebook passwords made national news, it's doubtful that has happened more than a handful of times. That is obviously private and there's no reason for that nonsense. That's the same as asking for someone's email password, or computer password, or SBA pw, it just seems silly.
I personally believe.. If someone is acting up or being suspicious in the workplace there are things that can and should be done to make sure the employee isn't lieing and ripping you off. I wanted to find out if my employees weren't doing either, I had my suspicions but I needed to know for certain. After a long and expensive search testing and trying different software I ended up finding one which i really liked using and it told me everything I needed to know! It's incredible. The Software is called Sniper Spy. The greatest asset it has is that it can be installed remotely and stealthy! And you can instantly start monitoring. What it records and how it saves all the logs is incredible. Check out this website -This post was edited to remove a link. Please review our Community Best Practices for more information about how best to participate in our online discussions. Thank you. to see more of it's features, what it can do, how it works, and other important uses it has. So glad that I finally found a decent remote monitoring software that works and is stealthy enough i haven't got caught out. and Doubt i ever will!!
Nice writeup here. I am in IT and at my old job we would monitor EVERYTHING including phone calls, internet usage, etc. I am sure most if not all companies these days monitor at least one aspect of communication.
I found that my boss knows nearly all my activities on the computer, I think he may have install a computer monitoring software on my computer, But i don't want to lost the job. what should i do?
Great article..I think it is unethical to break the privacy of the employee's. You are also losing trust at your workplace and that is not good for the vibe of the workplace.
Not only is it important to know your rights as an employer, but it is important to set guidelines for your employees. As a bail bond agent, we frequently deal with a variety of clients who would not want their name blasted on Facebook. As with most businesses, it is extremely important for us to have a Facebook policy to give our employees an actual list of our expectations. From the start, they understand the implications of posting company information online, which can be a big deal for many organizations.
I think about blog of my own website creation for a long time. It's that main points in this article look really great and I hope to try them in practice.

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