As promised last week, this post focuses on some
best practices and practical tips related to workplace surveillance. Regardless of the type of employee
surveillance at issue, an employer should consider doing the following:
· Be Mindful of Your Company Culture: Apart from legal risks, surveillance can
carry practical downsides that may, for some employers, outweigh the potential
upsides of employee surveillance. Depending on the company’s culture and the type of surveillance being
used, surveillance can injure trust, relationships, and create negative
morale. These days, most companies
reserve the right to monitor employer provided technology and work emails, but
installing advanced tracking devices or video cameras in the workplace is less
common and might, for some employers, lead to an unacceptable level of negative
fall-out. Before embarking on
surveillance, each employer should determine the unique impact of surveillance
on its workplace and whether the benefits of surveillance outweigh any
downsides.

· Be Mindful of Where You Place
Surveillance Tools: If your company does
decide to engage in surveillance, be mindful of where you place tracking or
surveillance tools and check with legal counsel on any applicable federal,
state or local laws. For example, some
areas, such as restrooms or changing rooms, are so private that they should be
off limits for surveillance. In
addition, some activities, such as union meetings, are off limits and should
not be subject to any surveillance.
· Technology Policy or User Agreement: Employers should establish and distribute a clear,
lawful employee technology policy or enter into user technology agreements with
employees. The policy or user agreement
should set forth the permissible and impermissible uses of workplace technology
and social media and should explain when employees’ technology usage may be
monitored. The policy or user agreement
might also include the following:
o
A reminder that technology usage on
company provided or reimbursed devices is not private and may be monitored by
the company;
o
A prohibition or limitation on the personal
use of technology on company time;
o
A prohibition on using employer-provided
or reimbursed technology to engage in unlawful acts, such as harassment,
defamation, or the like;
o
The requirement that employees not use
technology to disclose or improperly use the employer’s confidential
information, trade secrets, or sensitive financial information;
o
A prohibition or limitation on the use
of technology by non-exempt employees outside of normal working hours to
minimize “working time” for which such employees must be paid;
o
A warning to employees that any endorsements
of the company or its products or services must be truthful and disclose the
employee’s affiliation with the company; and
o
A requirement that employees agree to surrender
company devices when employment ends and permit the company to remove any company-related
data from an employee’s personal devices used for work.
· Conduct Narrowly Tailored
Surveillance:
An employer should have good business justifications for any
surveillance and should narrowly tailor its surveillance to its business
purpose. More specifically, a company
should:
o
Only conduct surveillance for legitimate
business purposes, such as to decrease employee dishonesty, to promote
productivity, to prevent or respond to inappropriate technology usage, and/or
to investigate misconduct;
o
Surveillance should be limited to a reasonable
time, scope, and subject;
o
An employer should only gather the information
necessary to accomplish the business purpose and should not gather extraneous,
personal information about an employee;
o
When an employer identifies employee
information as personal or otherwise irrelevant, it should cease reviewing the
information; and
o
Surveillance should be conducted with
the guidance of legal counsel and by trained individuals.
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