BY Shulamit Shvartsman for Lawyers.comsm
The online workplace oDesk.com takes employee computer use monitoring to a whole new level. oDesk is a web site that connects employers to freelance workers around the globe. Its talent pool includes writers, programmers, graphic artists, web designers, data entry clerks, and more.
Webcams and shared computer screen technology allows employers to manage the remote employees over the web in real time. A Chicago advertiser can hire a San Francisco copy writer and San Antonio web designer, and they can work together online almost like they were in the same room.
The creepy part is that oDesk lets employers sneak virtual peeks over workers' shoulders throughout the day. The management software records random screen shots, counts keystrokes, and even takes webcam photos to show workers are at their computers when they're on the company clock.
Annoyed critics say the oDesk surveillance is an over-intrusive invasion of workers' privacy. It shows a lack of trust and hampers creativity. Other workers don't mind being monitored. They say it helps them stay focused and on task.
Today, most workers have gotten used to the idea that their boss can monitor and read their e-mails they send during the work day or through their work computers. It's general knowledge when you use a work computer or work e-mail account, e-mails are captured on the server and can be retrieved.
Surveys show that more corporations are monitoring their employees' e-mails and web traffic. However, recent cases illustrate that workers actually have more privacy rights than initially believed.
In the past, courts treated work computers and everything in them as company property. Judges also allowed corporations to monitor personal e-mail accounts accessed over corporate computer networks.
Now, rather than automatically concluding that an employee has no right to privacy in the e-mails or sent on a work device, more courts take into account whether there is an explicit e-mail monitoring policy and whether the employees are aware of it.
What Is Causing This Shift?
In the increasing age of digital information, it's become easier than ever to get someone's private information over the internet. Recent court decisions mirror the growing concern over privacy among the general population. Courts are now more open to hearing arguments based on privacy.
Two recent cases illustrate this trend. In New Jersey, a worker planning on quitting her job used a personal e-mail account on her work laptop to e-mail a lawyer to discuss a workplace discrimination suit that she was initiating. After she left her job and filed the lawsuit, her employer extracted the e-mails from her laptop arguing that the laptop and its content were company property.
However, the appeals court rejected the company's claimed right to the property and ordered the company to turn over the e-mails and delete them from their hard drive.
Similarly, a former vice president of sales for a data management company sued her company when she learned that her boss read her personal e-mail account. The boss justified his actions by claiming he feared she was revealing trade secrets. A jury ruled for the employee and the case settled out of court.
Employers argue that because a computer is their property they should have access to the information sent over their property. An additional argument favors employee e-mail monitoring as a deterrence. Productivity drops when workers spend most of their day writing personal e-mails. There's also a danger of viruses or security breaches when sent over the employer's network.
However, computers have become such a large part of the personal and professional life. Courts are now ruling an employer doesn't have a legal right to monitor an employee's e-mail unless they've told that employee his e-mail will be monitored. Even when the e-mail in question was sent from a personal account but from a work computer. This is a clear shift from earlier decisions.
Tips to Protect Privacy
While courts are becoming more favorable to employee privacy rights, still assume that any e-mails or documents you save and send from your work computer or account accessed by your employer. When in doubt, don't send potentially scandalous or private e-mails from your work computer or work e-mail account.
As an employer you should have a clear policy and guidelines on privacy and e-mail communications that your employees read and sign and review from time to time. If you think it's a questionable idea to send a particular e-mail - don't send it. It may come back to haunt you.
Questions for Your Attorney
- My employer took my computer because they said I was using it to arrange illegal gambling activities. Does that mean they can look at my files and messages on the computer?
- Can my employer demand to look at e-mails I send from a personal blackberry while I'm at work? If I upload messages from my work computer to my blackberry, are the messages now "private?"
- I'm being investigated at work for breaking rules about sending personal and confidential client information through e-mail. I think someone else at work is using my computer to do it, but my employer doesn't believe me. Is there anything I can do?