Employee Privacy: How Much Snooping Are Employers Allowed?

With the ever increasing prevalence of technology and social media in every aspects of our lives, including and especially in our professional lives, one question that seems to often arise is this: how much monitoring -via email, text, telephone, and of employee’s work computers, is an employer allowed to engage in?

Would it be, for instance, within an employer’s right to access any communication between an employee and a member of his or her family if that communication took place on, or was facilitated by equipment and technology that was provided by the employer? Would this employer be within his rights to legally fire an employee as a result of unflattering or disparaging remarks the employee made about the employer, which was discovered to be made via the equipment made by the employer?

In any of the above scenarios, it will often always depend on the specific scenario in question, and “one situation will not always fit all.” The below information is a quick non-exhaustive review of some of the most recent developments on the subject.

Employee Privacy
It goes without saying that an employer has an interest in how an employee makes us of any equipment and technology which said employer provides, and for the most part, said employer may regulate or place any other restrictions that they deem appropriate, on the employee’s use of said property.

That being said, while employees might reasonably expect to enjoy some degree of privacy with regards to their use of their employer’s computer systems, networks and other equipment, such expectation or rights might only be tempered or limited by the existence of a specific policy that dictates how these properties might be used. Accordingly, it is actually appropriate and proper for an employer to have such a policy in place to address and define and state the extents to which employees can and should use these items. Additionally, such policies should clearly state the extents to which such equipment can be subject to monitoring by the employer.

It is quite understandable that an employer may have an interest in sometimes monitoring the activities of its employees, even when these activities happened on their own private time on social media platforms like Twitter, Instagram and Facebook, and even when these take place via their personal technology. This is because as long as the employee is still in the employ of the employer, there is always that chance that the employee will do things that may in one way or another, cause problems for the employer, such as the employee sharing confidential information related to the company or its clients, or otherwise sharing any other information that might in one way or another harm the company, such as harming its image or competitive advantage. Therefore, because of all these risks than an employer’s business faces, it is reasonable to expect the employer to put in place policies that mitigate these risks, specifically referring to policies that allow for the occasional monitoring of communications by the employee.

The most important thing with regards to the drafting of these policies however, is to make sure that the specific needs of the business are the utmost priority that is reflected within the spirit and letter of the policy. It should however also incorporate as much fairness and diligence as possible, so as to minimize as much as possible the risk of being slapped with allegations of discrimination of one kind or another.

Firing Employees Based Upon Their Use of Social Media
It can be expected that any employee who is found to be posting any negative or derogatory comments about his or her employer can be expected to be sanctioned in way or or another, including being dismissed from the job. Be that as it may, in such situations, it is reasonable and possible for the sacked employee to face legal actions for such actions.

Both situations are obviously unwanted as either of them brings about a disruption in the normal scheme things for the specific party. Which is exactly why they both must be very careful before either of them does anything– the employee thinking twice and understanding the mood, temperament and policy of the employer with regards to social media comments that mention and impact on the organization, and the employer being absolutely sure he or she is in the right if deciding to fire the employer.

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