The workplace has changed dramatically in recent years. Technological advances in computer and communication systems allow employers to receive, manage and disseminate information much more rapidly and effectively. However, with these new tools comes the possibility for employee abuse. Given the
ease — and by all accounts, the frequency — of such misuse, employers are being forced to explore their rights, obligations and options with respect to protecting their business interests through monitoring employee use of systems tools.
Employers are concerned about many things, including productivity, network performance, risk of liability and espionage. Each can have a significant impact on an employer’s operations and each serves as an impetus for the electronic monitoring of workplace computer activity.
Notwithstanding the moral debate, a growing majority of employers are open to the installation of filtering and monitoring products as a means of preserving the business tool identity of e-mail and the Internet. The number of employers who monitor employee electronic activity has doubled in the last few years, to approximately 80 per cent, according to a study of U.S. workplaces by the American Management Association. It is generally believed that an equal proportion of Canadian workplaces also monitor.
One serious concern that employers must consider, however, is that of employee morale. For some employees, an Orwellian fear of “”Big Brother”” exists in the workplace. Although most employers and employees recognize that the very nature of the employer-employee relationship denotes some level of monitoring, it is difficult to reach agreement on the level that is appropriate. The issue that ultimately emerges is how to balance an employer’s right to manage the workplace against an employee’s right to privacy.
Those advocating employees’ privacy rights often speak to various studies concluding that employer monitoring can have a detrimental impact on employees. Some studies suggest that electronic monitoring is a significant contributor to both psychological and physical health complaints. Workplace privacy proponents argue that monitoring creates feelings of paranoia and increases workers’ stress levels. On this basis, it is argued that monitoring is counterproductive to the result that employers are attempting to achieve.
From a strictly legal standpoint, the law, although it is able to provide some guidance, is not yet settled in this area. In general, the use of monitoring tools is permissible, provided employees are clearly made aware of them.
Employers wishing to engage in such monitoring should draft formal e-mail and Internet usage policies that clearly outline acceptable and non-acceptable behaviours. Commonly referred to as an acceptable use policy (AUP), these policies define the rights, obligations and expectations of the parties. It is recommended that employers include the AUP language in their employee handbooks and that they draft acknowledgement statements to be signed by every employee.
Many employers enlist onscreen messages to remind employees of the company’s policy. A prudent employer will also inform its employees of the monitoring level that will occur, not deviate from that stated level and enforce breaches of the AUP consistently.
Dan Palayew is a partner with the law firm Ogilvy Renault and a member of the Labour and Employment Law Group practising in its Ottawa office. He specializes in employment and labour law, acting exclusively on behalf of management. He can be reached at (613) 780-8637.
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