Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040As a Northeast Indiana business owner, you are too busy to monitor your employees on a regular and ongoing basis. However, what can you do if you hear a key employee is looking for another job, or viewing porn with regularity which could create a “hostile work environment”? Then there is the employee who is playing poker or is he also engaging in corporate espionage or divulging trade secrets?

    Employees in the workplace, utilizing your modes of communication, have as a rule, no expectation of privacy. Each form of monitoring has its own “rules” as to how courts treat the respective form of employer vigilance:

    Phone Calls
    Land line telephone calls and employer sponsored cell phone calls are the most protected form of employee communication and employers should tread carefully. Indiana, like a number of states, allows you to monitor/record calls for quality assurance purposes. Although federal law allows employers to “eavesdrop”, once the employer realizes the call is personal in nature, you must stop monitoring the call. However, you may discipline the employee for utilizing company equipment or employer time per a written policy you must have in effect before the corrective action is issued.

    Employers are able to access employee voice mail or company owned equipment. However, it is best to have a policy in place that ensures that your employees know that their voicemail is not private.

    Employers are generally permitted to read the emails of their employee, notably in light of the fact there is a policy which stipulates such correspondence is property of the company. Telling employees their emails are confidential or permitting your workforce to have unique and private passwords/pin numbers that only they know, erodes your right to monitor. Your policy of course must state a legitimate business rationale for the review of emails, i.e. quality assurance, prevention of harassment, etc.. When you do conduct such an evaluation, it is because of the policy and your endeavor to maintain a positive and productive workplace.

    Internet Use
    Evaluating employee internet use is generally the least restrictive form of employer monitoring, and employers are generally allowed to keep track of the sites their employees solicit. If you have not already, you must install software that limits or prohibits non business related websites which may be viewed. Again, a uniformly enforced policy is the key to prevent “theft” of company time.

    What Measures To Take?

    Eliminate any confusion as to what is an acceptable form of communication and whether it will be monitored or not. You must draft a policy with the assistance of competent counsel, that outlines what communications are monitored, why and under what conditions. Have employees sign an acknowledgment of receipt of the policy and place it in the employee’s personnel file to solidify the arrangement and to be used in an unemployment compensation hearing, EEOC investigation, or civil litigation that the employee knowingly and voluntarily agreed to your company’s internal communication policy.

    Obviously, you need a policy which you follow to ensure the prosperity of your business and prevent charges of harassment. As a guideline, keep your monitoring system in step to potential problems you may perceive with a policy of progressive discipline. Over-reaction is a good way to ensure your employee will contact plaintiff’s counsel. Feel free to contact me for a sample policy.

    Article by Loren K. Allison, attorney at law
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