Electronic Snoops, Spies, and Supervisory Surveillance in the Workplace (2013)

I. INTRODUCTIONEmployees are spending an ever-increasing amount of time using computers, cell phones, tablets and other communication devices as part of their work-related activities. Unfortunately, the use of advanced communications systems, the proliferation of on-line shopping sites, and the explosion of interest in social media outlets has also resulted in employees spending an ever- increasing amount of time connected to the Internet pursuing personal interest rather than company business.A recent survey of over 4,600 human resource managers and over 4,000 employees indicates that approximately 65% of employees spend at least some work time on non- work related Internet activity.1 Of those employees using social networks sites, some 56% check their profiles during their typical workdays and 15% of this group spends at least one hour a day browsing. The same survey indicated that 61% of employees sent personal emails, with 19% sending more than five personal emails per day.Management's response to non-work related Internet activity has been to establish tighter policies regarding Internet usage and electronic means to monitor employees. The most prevalent method of controlling employees Internet behavior, according to surveyed employers is by blocking sites (54%), monitoring Internet usage and email (50%), and firing employees for policy violations (22%).2The trends in employee potential misuse of technology, and employer reactions to this changing environment, is further evidenced by two earlier surveys conducted by the American Management Association (AMA) and The ePolicy Institute in 200 13 and again in 2007.4 These surveys indicated a dramatic rise in the use of electronic monitoring, primarily as a tool to avoid potential lawsuits. According to the 2001 AMA survey over 60% of responding companies monitored employees' Internet connections, 46% e-mail, and 36% storage and retrieval of company files.5 By 2007 the figures had risen to 66 percent monitoring Internet connections. It is highly likely that this trend in electronic monitoring will continue as the technology (hardware and software) continue to improve and becomes less resource intensive to install and use.6In 2007 employers seemed to be highly concerned with inappropriate web surfing and cyberloafing; 65% of the companies monitoring employees used software to block inappropriate websites, up 27% from 2001. Inappropriate sites that are blocked by companies include those sites with adult content (96%), games (61%), social networking (50%), entertainment (40%), shopping (27%) and sports (21%). Software is also extensively used to monitor email. Approximately 43% of the companies surveyed monitor email, with 73% using technology, and 40% using individuals to manually read and review email. Additionally, 45% monitor telephone use, with 16% recording phone conversations. Another 48% (up from 33% in 2001) use video surveillance for security. Of those that use video, 7% also monitor employees' performance.7In addition to monitoring employee communications, technology now enables the employer to monitor virtually all aspects of an employee's behavior while at the workplace. Employee behavioral monitoring is not only conducted on the lower level employee such as the clerical, data entry or telephone employee, but on the intellectual and managerial employee as well. And the monitoring can be done openly or secretively. The concept of privacy at the workplace is clearly in a state of flux as management and employees continue to adapt to the rapid changes brought by the advances in technology.This article is intended to present a brief review of constitutional issues and federal and state legislation regulating electronic monitoring of employees. Representative cases will illustrate the application of the statutes. The article will discuss the hazards of monitoring email and texting by employees and urge caution when employer monitoring moves to activities outside the workplace. …