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Big Brother
Is Watching
Employer warning: Failure to post a notice warning your employees of possible electronic monitoring may subject you to a civil fine — and more
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Business New Haven
9/7/1998
By: Debra A. Drexler
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Starting October 1, Connecticut employers must reveal to workers whether electronic monitoring is occurring in the workplace. While the new law doesn't bar such monitoring, its requirements will provoke much discussion.
Electronic monitoring is defined in the statute as “the collection of information on an employer's premises concerning employees' activities or communication by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems.”
The law permits employers to conduct electronic monitoring so long as there's a “notice concerning the type of electronic monitoring which the employer may engage in” posted “in a conspicuous place which is readily available for viewing” by employees. The penalty for violation of the notice requirement is a maximum fine of $500 for the first offense, $1,000 for the second offense and $3,000 for the third and each subsequent offense, all to be levied by the state labor commissioner following an administrative hearing.
Compliance appears easy: Employers may simply post a notice, along with the standard EEOC and wage-hour posters, stating, “This company may engage in all types of electronic monitoring as defined in Public Act 98-142.” The employer who posts such a notice can then choose whether to engage in electronic monitoring and to what degree.
But such a broad notice is certain to generate a host of employee questions, spoken and unspoken. It may be more prudent to determine, before the law takes effect next month, whether to specify each possible form of electronic monitoring in the notice - and whether it would be the better practice to incorporate the notice into a policy governing employees' use (or abuse) of the company's electronic data-communications systems.
At a minimum, companies are encouraged to specifically include a statement to the effect that all data traveling on an employer-owned e-mail system (which courts even before this law found can be legally accessed by the employer) are to be used only for company business and are subject to monitoring.
As with all laws, there are exclusions (from the definition of electronic monitoring) as well as exceptions (to the notice requirement). The collection of information for security purposes in common areas held out for public use - for example, surveillance cameras - is excluded.
Under specified scenarios: 1) if an employer has “reasonable grounds” to believe that employees are engaged in misconduct and the monitoring “may produce evidence of this misconduct”; or 2) if the conduct violates the law, violates the legal rights of the employer or the employer's employees, or creates a hostile work environment, then the employer may engage in monitoring without prior notice.
However, the law does not give employers the right to collect information “prohibited under state or federal law” - such as wiretapping - merely by posting a notice in the lunchroom.
The statute leaves ample room for interpretation by the courts. If an employer fails to post a notice and reviews but does not collect electronic communications, is the statute violated? Does the “offense” apply to the entire workplace - or only to an employee who claims to have been monitored? Must the employer have reasonable grounds to suspect employee misconduct before commencing monitoring - or can discovery of misconduct excuse monitoring activities conducted without prior notice?
And, even though the enforcement portion of the statute does not authorize employees to sue for a notice failure, has a new category of private employment litigation been created?
The warning notice is bound to provoke suspicion and debate, at least until it becomes a routine part of the workplace. Employers should establish appropriate policies now - rather than becoming a test case for interpretation of the new law. BNH
Andrew Houlding is an attorney and principal of the law firm Rome McGuigan Sabanosh, P.C., with offices in Bridgeport and Hartford.
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