With the use of email, chat rooms, cell phones, facebook, twitter, laptops, and many other communication means the line between an employee’s right of privacy and an employer’s ability or duty to monitor its employees becomes blurred. A new form of sexual harassment is becoming prevalent with the use of text or instant messages being sent by one employee to another. It is difficult for employers to know how to navigate these gray areas.
In fact, the law is in a state of flux on these issues, but The Federal Wire Tap Act, Illinois law and an individual’s right of privacy protect most forms of communications from being accessed and intercepted. However, if the employee is using an employer provided device or service, then the employer may be permitted to access and intercept the message pursuant to a clearly developed policy.
If the employer has developed and disseminated a clear privacy and monitoring policy to its employees with a legitimate basis for monitoring, then the employer’s actions will often be protected. Typically, the following types of interests are considered legitimate for monitoring an employee’s communications: 1) investigating a complaint regarding harassment, discrimination or similar issues; 2) preventing or protecting against theft of company property, including intellectual property; 3) time or recordkeeping fraud; 4) and a variety of similar interests.
However, quite often courts make a case-by-case determination and a policy of monitoring any and all communications even during non-work hours can lead to employer liability for invasion of an employee’s privacy. Also, the employer’s liability will increase if the information collected is disseminated to third parties without proper authorization.