Answer to Last Week’s Question
Each week, we post a thought-provoking question for your consideration.
Here’s last week’s question, along with your responses:
Can an employer monitor email and Internet usage and take action based on that monitoring?
a. Yes (43%)
b. Yes, if the employee signed a consent form consistent with the model language provided in the NRPA (National Right to Privacy Act) (16%)
c. It depends on whether the company has a policy deflating any expectation of privacy and whether it’s consistently enforced (41%)
d. No (0%)
The correct answer is “c.” Employers need two things here: (1) a policy deflating any expectation of privacy when using the company’s computer system and (2) consistent enforcement of that policy. Virtually all employers have the former but, unfortunately, few do the latter. Inconsistent enforcement can lead to discrimination claims and make it more difficult for you to go after employees who use company property for nefarious purposes.
Another tip: Any time a lawyer’s answer starts with “it depends,” chances are that’s the correct answer. Also, there’s no such thing as the NRPA (National Right to Privacy Act). We made that up.
Allow me to repeat what I said last week. When I was in private practice before joining Manpower, too often I had conversations like this:
HR Person: We want to fire Joe Sleaze. We caught him visiting porn sites at work.
Me: Do you have a policy that prohibits that?
HR Person: You bet.
Me: Is it consistently enforced?
HR Person: Um . . . define “consistently.”
Me: Well, tell me about recent instances in which you’ve taken action against employees under the policy.
HR Person: (Long pause) Umm . . . uhh . . . ehh . . . well . . .
Me: OK, maybe it’ll be easier to tell me about recent incidents where you DIDN’T enforce the policy.
HR Person: Well, we didn’t exactly do anything when our CEO forwarded a racy email to the whole company. Or when our top salesperson got caught downloading naked pictures of himself. Or when (continues to reel off another 12,000 or so examples).
Don’t let that be you. A policy that isn’t enforced isn’t really a policy.
Our readers are now batting an even .500 (12 right, 12 wrong) on our weekly questions. The next one will be coming your way soon.
Thanks for your participation!
April 17th, 2008 at 10:50 am
Hi Mark,
Could you clarify what an employer would need to do to “consistently enforce” their internet and email policy? For instance, is a site filter enough? Or does an employer have the responsibility to monitor all emails and website visits?
Thanks for the clarification.
April 21st, 2008 at 7:22 pm
Hello Sandy!
All I mean by “consistent enforcement” is that the employer applies the policy fairly and equally to all employees. An employer is free to do spot checks, etc. and if it discovers violations it must take action consistently (or risk claims of discrimination).
Hope this helps!
Mark