THE MAGAZINE

Mindful Monitoring

By Ian D. Meklinsky and Anne Ciesla Bancroft

SYNOPSIS
Many organizations monitor their employees’ use of e-mail and Internet systems to prevent abuses and to protect themselves and their employees. However, employers must be mindful of employee privacy rights as they implement monitoring programs if they are to steer clear of liability.

Employees may be protected from an employer’s electronic monitoring under three categories: First, employees may seek protection under either the federal or a state constitution. Second, a federal or state statute may provide employees with protection. Third, employees may be able to find some common law precedent on which to base a claim that the company violated their privacy rights.

Employees seeking redress from electronic monitoring periodically assert an invasion of privacy claim. Despite the availability of this type of claim, courts rarely find that employers have invaded the privacy of an employee through electronic monitoring. To be successful, an employee must overcome several hurdles. There must be an intrusion, and the intrusion must be intentional. The employee must have a reasonable expectation of privacy in the matter intruded on, and the intrusion must be highly offensive to a reasonable person.

To further reduce the likelihood that an employee would prevail in this type of claim, employers should eliminate the employee’s reasonable expectation of privacy by having a well-publicized policy and obtaining employee consent to monitoring.

Ian D. Meklinsky and Anne Ciesla Bancroft are partners in the labor and employment law department at Fox Rothschild, LLP, in the firm’s Princeton, New Jersey, office.

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