Employees have certain expectations from the modern-day workplace. Employers need to be able to assure them of an environment free of safety hazards, identity theft risks, misconduct, discrimination, and hostility. Given the increasing frequency of workplace accidents, instances of sexual harassment, cyberattacks, and other forms of misconduct, employers are more careful than ever about protecting themselves against future occurrences as well as the potential lawsuits that they can perpetuate.
Remember that these lawsuits can be extremely damaging to both your corporate brand and your employer brand, meaning you will lose credibility with both your customers and your workers. This has prompted most employers to implement some form of workplace surveillance. This doesn’t just help maintain productivity but also helps to protect both employers and employees against a number of undesirable workplace occurrences.
However, there is a very fine line between monitoring workers for business interests and invading their privacy. This blog will attempt to make things clearer for employers who wish to understand how surveillance in the workplace works.
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The Case for Workplace Surveillance
There are many risks that come with running a business. However, it is the job of managers and leaders to do everything they can to mitigate those risks. One of the key risk areas is an employee suffering from an injury, harassment, or fraud in the workplace, as well as becoming the victim of a cybercrime. There is no shortage of businesses that have been taken to court by former employees alleging that they did not have the necessary controls in place to stop such instances from happening. That’s not to mention how expensive drawn-out litigation can be, especially for new businesses that are not just trying to survive, but also to grow. Workplace surveillance offers a solution in two contexts.
First, it acts as a deterrent. When employees know they are under observation, they are more likely to be productive and less likely to engage in any misconduct. This is why you often see manufacturing staffing firms disclosing potential surveillance policies right from the get-go. Second, if there is any misconduct of the sort mentioned above, businesses can investigate matters more effectively and ensure a fair resolution of the issue at hand. Both of these act as a shield against potential lawsuits in the future that could seriously impair your business’ reputation both among clients as well as among employers.
For example, a single case of workplace harassment could damage your brand credibility if it can be proven your business did not take the appropriate steps to counter it. In the modern world, with everyone having access to social media and a climate that does not tolerate sexual, financial, or professional misconduct, this could potentially leave a lasting stain on your brand image.
For too many people, your brand will always be associated with harassment or sexual misconduct. Nobody will want to buy from you, and nobody will certainly want to work with you. However, through extensive monitoring, you can not only nip such instances in the bud, but you can also collect evidence to build a case against a wayward worker, protecting yourself in the process. The problem arises when determining what defines legal and appropriate monitoring based on workplace surveillance laws.
The Legal Grounds Governing Surveillance and Monitoring
When implementing monitoring and surveillance in the workplace, businesses have to maintain a careful balance between appropriate surveillance and respecting privacy laws in the workplace. You also need to be careful about complying with federal and state laws that govern surveillance in the workplace. These laws cover what privacy employees are entitled to in the workplace as well as when they need to be expressly notified about being monitored.
In terms of covering all the bases, one of the best routes to implementing surveillance and monitoring is to disclose it to the employee at the time of hiring. In a legal context, this means that employees know they are being monitored, therefore they cannot expect reasonable privacy in the workplace.
However, this has led to a number of invasion-of-privacy lawsuits all over the country, leading to another source of guidance on the matter other than federal or state laws. Common law, or the law derived from precedents set by various courts in various states helps to determine the extent of privacy that can be expected and the circumstances when an employer is entitled to exercise surveillance for business interests. What this means is that what a court in Mississippi might rule may differ from the Illinois Right to Privacy in the Workplace Act.
The ECPA or Electronic Communications Privacy Act of 1986 governs the circumstances under which employers can use workplace surveillance. This is by far the only federal law that covers this aspect of a business. The ECPA was originally passed as an amendment to the Wiretap Act, expanding its ambit beyond voice and wire communications to digital ones like email surveillance in the workplace.
However, two exceptions are very important from an employer perspective. The first one allows employers to monitor employees as long as they can show they have a valid business purpose for doing so. The second one allows employers to monitor employees if they have acquired their consent to do so. Both are easily accomplished in modern business.
While the ECPA is the only federal law dealing with it, it only lays down the minimum restrictions for employers. Individual states have the authority to impose much more extensive restrictions on surveillance in the workplace. For example, Connecticut state laws require employers to give employees a written disclosure of the nature and type of monitoring in place in the workplace.
Other states like Florida and California require employers to expressly declare employee privacy, leading to privacy expectations in the workplace. In such cases, it is trickier for employers to implement staff surveillance while still following the spirit of the law.
State and federal laws aside, many employees have based lawsuits on common law precedents from various courts across the country. The constitution or state legislation does not expressly lay down these rights, but the courts do, based on prior decisions.
Most such rulings are based on an employee’s right to expect reasonable privacy in the workplace. If this can be demonstrated, an employer may find themselves on the wrong side of privacy invasion. This is why it is so important for recruiters like telecom headhunters to be transparent and up-front about surveillance at every step of the process.
While federal laws are more or less straightforward when it comes to what employers can or cannot do in workplace surveillance, they are by no means uniformly implemented across the country. Each state has a different outlook on what defines employee privacy and the right to expect reasonable privacy. For employers without the necessary legal advice, it can be very easy to run afoul of state laws and common law precedents.
This can be a huge potential embarrassment for any business, and a costly one as well. That is why national full-service staffing agencies like CGT Staffing specialize in connecting you with the right legal and HR talent to help you create companywide policies that cover all the legal bases and mitigate the risk of potential lawsuits. That’s not to mention our IT staffing solutions that can get you the right talent on a contract, temp, or long-term basis to create and maintain an appropriate surveillance system.