Electronic Employee Monitoring

With the increase of electronic devices at work, employers are becoming more aggressive in monitoring personal use of company systems in order to maintain productivity. Such monitoring is permissible, provided employers comply with any applicable statutory requirements, and take steps to protect themselves from employee invasion of privacy claims. Improvements in technology now allow employers to monitor computer use, phone use, voicemail messages, email systems, and track employee movement through GPS devices. A recent study by the Center for Business Ethics found 90% of employers perform some form of electronic monitoring, with one-third terminating employees found to have violated company policies.

Connecticut employers must notify employees prior to instituting any form of electronic surveillance. Conn. Gen. Stat. § 31-48d. In addition, employers, even if not statutorily required to do so, should inform employees of their surveillance policies to reduce any later privacy related claim. Most courts will consider a statement in an employee handbook sufficient to overcome any claim that the employee did not know their conduct would be monitored.

Also, as electronic data increasingly is used in employment litigation it is crucial that employers have well written policies governing the use of business systems, the right to monitor such use, formal retention and destruction polices, and an ability to save pertinent data in the event of suit so that the opposing party’s right to discover electronic data is preserved while favorable defensive evidence remains available.