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

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

• Protecting Employee Privacy: Health Information Rules for Businesses
• How to Prevent and Detect Business Identity Theft

Useful Resources

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

About the Author

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