E15: Monitoring Employees Technology

In this episode host Thom Jennings and resident expert Kathleen Jennings, discuss employer monitoring of employee communication and employee use of computers for nefarious purposes. In some states, employers are required to notify employees what is being monitored.

Podcast Episode Transcript

Narrator (00:04):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law. Our popular Cover Your Assets blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:33):
Hello everyone. Welcome to Cover Your Assets e Labor and Employment Law podcast. And since you can't see us, you don't know that we're both wearing tie dye today, so I'm not sure that has anything to do with today's topic, tie dye, but that's what we're wearing. So how are you today, resident expert, a k a attorney Kathleen Jennings.

Kathleen Jennings (01:01):
Doing great, Thom, how are you doing this wonderful holiday weekend.

Thom Jennings (01:06):
Well, we're here in Western New York, so it's it's, we're we're looking at June very soon, so it should stop so snowing any minute. Yes. No, it's a beautiful day here in Western New York. How's things down in the lovely state of Georgia?

Kathleen Jennings (01:20):
Things down here are hot and humid, which is about par for the course for summer. But summer starts early.

Thom Jennings (01:27):
So before we get into our topic today, which will be employer monitoring of employee use of technology, and we're gonna have to come up with a more succinct title, succinct, by the way, is the word of the day.

Kathleen Jennings (01:41):
We could call it I spy with my little eye.

Thom Jennings (01:45):
Ooh, that's yeah, no. Anyhow, so we, we, you know, I went through and looked at the statistics of the podcast. I found something very interesting. We now you're in Georgia, which I believe is in the United States of America. And there is another country.

Kathleen Jennings (02:02):
This is the state of Georgia. Yes. Not the country of Georgia.

Thom Jennings (02:05):
Well, there is a, isn't there a country of Georgia?

Kathleen Jennings (02:08):
There is a country of Georgia in Eastern Europe.

Thom Jennings (02:10):
It's in Eastern Europe. Well, we do have listeners in Eastern Europe in a little country called Russia.

Kathleen Jennings (02:19):
Russia,

Thom Jennings (02:20):
Yes. We have had, that's

Kathleen Jennings (02:22):
Interesting.

Thom Jennings (02:22):
Three listens in Russia.

Kathleen Jennings (02:25):
Wow. So that means we're international.

Thom Jennings (02:29):
We are indeed international. We are, we are broadcasting to the lovely country of Russia. So I just wanna say to our three listeners out there, if one of them is Vladimir Putin, please just stop. Just stop. So topic today and you know, the, we will, we'll go through this. This is I dunno, we were, we were talking before we came on air about some people that have done some kind of crazy things in terms of using technology at work for nefarious purposes. So we'll start out with, I think we actually touched on this one before, before, but New York State recently passed legislation and I'm, I, you know, usually when one state does it, other states will either have some kind of laws that are similar or, you know, it, it's the domino theory, I suppose, in employment law where the employer has to notify the employee what is being monitored in terms of their activity.

Thom Jennings (03:30):
Whether that be phone conversations, you know, recording phone conversations, which I think would be relevant, let's say in, you know, customer service industry if you're making a lot of calls and talking to people. And that's to protect, you know, to protect the company in case somebody makes a claim that the representative said something that they didn't and so on and so forth. Email, which is be a big thing. But then, you know, the other thing I think sometimes people don't necessarily think about is internet usage. So if you are given a device and you bring it home, your employer will likely have the means to monitor whatever activity is on that device. And even if they can't monitor at the time, they're gonna be able to figure out what's been done on the computer once you turn it in and all that kind of stuff. So and I think it goes, you know, we, we read one article that said it takes a, I hate to use this term cuz it sounds very degrading, but it takes special kind of stupid to not realize that your stuff is getting monitored. And I think you discussed a case where somebody was doing an email dump before they left an employer and it became an issue where it was a, what do you got, like a breach of confidentiality or what was that

Kathleen Jennings (04:44):
One? It was a, it was a breach of a non-compete covenant in their, in their employment agreement. So that's where that would come up. And then you have just the people that are using their company's resources for non-work purposes. You know, are they, are they shopping? Are they looking at porn? Are they participating in March Madness Pool? Yeah. Or maybe even fantasy football.

Thom Jennings (05:14):
Well, you know, I would like to, I'm gonna make the confession right now if my employer is listening, which they probably aren't now, but yes, I've, I've done some fantasy football transacting on

Kathleen Jennings (05:26):
I figured you had

Thom Jennings (05:27):
Computer. Yeah, we, we actually, it's, it's,

Kathleen Jennings (05:29):
That's why I raised it

Thom Jennings (05:30):
<Laugh>. It's funny you mentioned March Madness because I remember when I was working at a, a not-for-profit and actually it wasn't, it wasn't March Madness. I know March Madness. We all got in trouble yet sent one of those emails like, please don't watch March Madness games on your computer cuz it's dragging the network down. But we had a situation where one of our former students was on the Steve Wilco show, and Wilcos was the guy that was in, he was Jerry Springer's, you know, bouncer. And so this was that kind of thing. It was one of those, you know, kind of crazy things. So this student was on this Steve Wilco show and we all were streaming it and shut down the the computer network <laugh>. So it was a the employer, our employer, my employer at the time, who shall remain unnamed, was not was not too happy with that. The video itself though was hilarious. So I'm not gonna,

Kathleen Jennings (06:25):
And, and you know, I'll confess that kind of thing happens at my office up in Atlanta. If, if one of the partners is doing a webinar or some kind of video call, sometimes they have to send around an email to the staff to tell them to stop streaming or whatever they are doing. That slows the network down.

Thom Jennings (06:47):
So

Kathleen Jennings (06:48):
It happens everywhere.

Thom Jennings (06:49):
And in that case, really that becomes a, a matter of, you know, really a, a disciplinary issue or just, you know, people, employers just telling people to stop it. Like you said, it's not a big deal. It's probably not gonna get you terminated unless it becomes really abusive. So, you know, March Madness, I mean it only happens in March. I mean, there's other times where maybe there's some sporting events that could potentially bog down the network, but you may not see that as much anymore cuz people can bring their personal cell phones to work and and stream that stuff very easily Now. So let's get into the stuff that maybe employee employers, because this is a podcast for employers should be wary of. Let's start with how would you craft a policy that would protect you from situations where, you know, we mentioned porn at the beginning. Okay, so if generally speaking,

Kathleen Jennings (07:46):
You mentioned porn. I didn't mention

Thom Jennings (07:49):
Porn. I believe if we go back in the recording, you were the first person that actually used the word porn today.

Kathleen Jennings (07:57):
Okay. <laugh>. We'll check <laugh>.

Thom Jennings (08:01):
So anyhow now you made me lose my train of thought. See this is that, this is that brother sister thing. Is that it, you just knocked me off what I was thinking, but anyhow, my train of thought was this. Okay, so let's say employees are just typically using their computers for personal stuff, you know, fantasy football, streaming, YouTube videos, watching television shows, all that kind of stuff. But then it does shift into that word that you mentioned first in this podcast porn, which could be a, a huge problem if there's, I mean, is it correct that if there's not a decent policy in place where maybe there is a policy in place in terms of use of employer resources that could get an employee fired? Do you, do you have to worry about crafting the policy or do you have to be consistent on enforcement? So example, I'm watching March Madness shutting down the, the computer network, but somebody else is watching porn and the, the watcher porn turns around and says, well, everybody watches stuff on their personal computer. So why am I being penalized?

Kathleen Jennings (09:07):
Well, I I think when you say, is it important to craft the policy or consistently enforce the policy, both are important. I think it's important first to have a written policy that puts all of your employees on notice as to what kind of monitoring you are doing of their activities. And some state laws, as you pointed out, New York require that. So the first step would be, as in many cases know your state law, what does it require? What is, is there a specific magic language that they want you to have in your policy? But it's important to have the written policy and be transparent about what you're doing, because that way if you find employees that are abusing company resources for and doing activities other than work on their computers and you want to discipline them for it, you have this policy right here where you can sit them down and say, look, you know, we're monitoring you, you know that we can check on what you're doing.

Kathleen Jennings (10:18):
We did check and here's what we found. And so that's, you know, if you're watching porn while you're supposed to be working, that's not productive. And if the employee is streaming the porn on a company computer or in a company cubicle or a company office and somebody else sees it, now you're running into a potential sexual harassment issue as well. So there's a lot of layers to this problem. And then secondly, of course, as you pointed out, as with any employment policy, it's important to consistently enforce it. So the person who is looking at porn while they're at work is not being productive. And so is the person who is watching the March Madness basketball game while at work. So if you want to impress upon employees how important it is to be working rather than goofing off, then both of those folks need to be disciplined or counseled or however your progressive discipline policy would handle those situations.

Thom Jennings (11:28):
And I, I mean, I think that, you know, we're talking about at work now, the term at work you know, traditionally always meant you're going to the office. But let's face it, the the workplace has evolved that a lot of people have started working at home and in many cases in order to accommodate an employee that was working at home, they were given a laptop or something to, to work, do their work at home. So I guess guess that leads to the question. I think, I think you, we all know the answer, but we'll discuss it further. If you're sitting at if you're sitting at home and you're watching porn on the, the employer issued laptop during work hours, we know that that is obviously a no-no, but, but, but here's the real question. So if I took the employer issued laptop and was watching porn off hours, would that be something that would be subject to discipline? If it's not in the policy or not? Because I, I think that kind of falls into a gray area, doesn't it?

Kathleen Jennings (12:28):
I think that's where you sort of come into the special kind of stupid, because if it's an employer owned electronic device, whether it's a phone, whether it's a laptop, whether it's a tablet, you need to be aware that, and if there's a policy that says the employer can monitor all your activities on that particular electronic device, it really shouldn't matter when you're viewing the porn on that device. Because if the employer looks on it and sees that you're viewing porn, it just doesn't look good for the employee. Yeah, maybe they're doing it on their off hours, but it, it shows a certain lack of judgment that even though they know that their activities are being monitored on this device, they are still using an employer owned device to do something that is inappropriate. So it's, it's, it's just not a good look for the employee. That's why you get your own phone, your own laptop, do that stuff on your own time that's your business. But once you start doing these activities on employer owned electronic devices, it's not your business anymore and it could affect an employee's career.

Thom Jennings (13:53):
Is there, is there a case where I, I, I heard of a case and that of a gentleman that lived near me, and he was, he was arrested for being in possession of child porn and when they investi did an investigation into the, to the, the porn and everything, like they went to his employer and confiscated the work computers, and is there any potential liability in terms of an employer, if a device is used for illegal activities and maybe they didn't take proper precautions to either monitor or maybe prevent access to certain types of, of things?

Kathleen Jennings (14:38):
It's possible. There's always possible liability for a number of things. If the employer undertakes the duty to monitor its employees, then it may be a breach of that duty if it lets illegal or unlawful activities go by without doing anything about it, without perhaps reporting it to the authorities. But if the employer doesn't know about those activities and has not undertaken a duty to actively monitor everything that happens all the time, there may not be liability there. So it, it really depends, you know, that's the answer to most legal questions that we lawyers like to give. It depends.

Thom Jennings (15:28):
Well, and you know, we, we recently, you know, at the time of this recording this this, this shifts to a little bit more serious, but topic, but we've had some shootings and there's definitely been an increase in, in violence with guns and, and other types of things. And sometimes it's workplace shootings, school shootings, you know, any, any of that kind of stuff. So I'm wondering, because you mentioned if the employer discovers something on a device that is illicit, like, you know, watching porn, but you could take that one step further, if you had an employee who was mentally unstable that was maybe going through a difficult time and having a hard time at work. I mean, they could we'll just use this for an example. Maybe they were searching online, you know, how to shoot up your workplace. I mean, stranger things have happened or, or even just shopping for weapons to bring to work.

Thom Jennings (16:26):
So in that respect, should the, should employers now maybe be more cognizant and more vigilant when it comes to monitoring communication? Because I would imagine they, they that it would be difficult to monitor each and everything and employees doing, but maybe, maybe a spot audit of the emails just to, to look for some things to make sure that there's no red flags. Or again, if you have an employee who is starting to have a difficult time in the workplace, maybe at that point saying, Hey, you know, we just need to take a look and see what they're doing on their device.

Kathleen Jennings (17:01):
I think the situation could arise where if an employee reports that another employee is exhibiting concerning behavior, maybe they're afraid that this employee is going to do something, maybe they're afraid that there have been threats or mental health issues, at that point, it may be appropriate for the employer to then monitor the email account of the employee who has been reported on, just to see if there's anything in there that could cause the employer to escalate this to law enforcement.

Thom Jennings (17:38):
And, and, you know, in, in this day and age, it's so easy. Not only you pull up somebody's email account, but you can search for keywords within the email and certain things. So it's not like you have to read each and every single piece of correspondence. But I would say that in terms of covering your assets and best practices, it's, it's probably once you say it's probably a good idea to have some kind of policy where you periodically pick a sample of employees and just go through their internet usage and things like that. But I guess the flip side might be is that people, people feel that those types of things are very intrusive. So you really could, you really have to ha approach it delicately because like you said, making a big deal out of an employee who's watching March Madness, but other than that is really good at their job, it it may be a battle that you don't wanna start because you could potentially lose the employee.

Kathleen Jennings (18:38):
Well, and, and I think it comes down to a matter of resources. You know, do you, if bigger companies are gonna have a dedicated IT department that may have the time and energy to devote to doing more monitoring of internet usage or emails versus a small company that outsources its, IT services to a contractor because it's, it's not big enough to have its own IT person. So in a lot of cases, just having the policy and the threat of monitoring may be enough to prevent employees from misusing work resources. And as you pointed out, there are employees who will feel violated if they know that their employer is watching what they're doing and they're not gonna like it, and they may go find another place to work because they feel like it's an invasion of their privacy, even though technically it's not, but it may drive some folks away. So that's another consideration.

Thom Jennings (19:48):
All right. Well, and again, that goes back to consistency crafting a policy, having some systems of, of, I guess, I don't know, you know, good, I said good, just good monitoring practices and of course it all comes back. We, we talk about this in just about every episode, communication properly, communicating with your, your staff making sure that you set the expectations. And again, if you're willing to tolerate the March madness or the YouTube videos or the shopping or the fantasy football, I think it's safe to say as long as an employee is still doing their job and not abusing those privileges, then no harm, no foul. But, but I think we're, you know, we've, we've kind of touched on it a little bit. We're an employer could get into trouble is maybe they're looking to what, we did an episode on constructive discharge, so all of a sudden they've decided that they want to try to terminate an employee because they don't like them for whatever reason. And instead of coming up with a specific reason, maybe they do something like, oh, you know, you're shopping on company time. Yeah, I, I actually had a situation where an employer, when they terminated me, one of the, one of the reasons that they gave was that I was purchasing Garth Brooks tickets on company time and on a company computer. So

Kathleen Jennings (21:07):
So they were just not country music fans?

Thom Jennings (21:10):
No, I, I think they just weren't a fan of me, <laugh>. Oh, they were just trying to get rid of me. But that was that was one of the things that where they were sort of piling on looking for reasons to, to terminate me. It, that, that, that creates a problem in terms of if there was a potential lawsuit. And in that case there was, you know, you're, you're looking at the, the thing, and a judge I think would look at that and go, really? You're gonna fire a guy for purchasing concert tickets online? Like, nobody does any kind of shopping or anything like that while they're working. So I mean, I think again, it comes down to if you're gonna enforce it, you're gonna have to enforce it hard. Or if you're not gonna enforce it, then you're gonna lose those battles over the Garth Brooks tickets. Whereas if I was, again, looking at porn, I, I think that's a no-brainer. I don't think a judge is gonna be like, well he's a lot, most employees look at porn at work. I mean, porn producers I imagine look at porn at work because that's

Kathleen Jennings (22:07):
And directors their

Thom Jennings (22:08):
Work. Yes. Yeah. And directors and maybe actors. But beyond that, I don't think of any case where maybe you're gonna be well police officers, but then again Yeah, not, not a lot of people. Yeah. Yeah. And you know who you don't want, you don't want the sex police coming to your door No. At work. No,

Kathleen Jennings (22:25):
No, no. The sex police will be monitoring your porn usage for sure.

Thom Jennings (22:31):
But I mean, do you agree with that as in terms of, you know, trying to use that as a means to terminate an employee when it's just a, something that goes on. So I guess on some level, maybe you do at least have to give it address those issues. Like, oh, we know March Madness is coming up and people are gonna be watching the games. You please. I think I've probably had emails like that over the years. You know, please be wary of the computer resources that you might bog down the network. We know you're doing it, but please think about it. And <laugh> just don't do it as much.

Kathleen Jennings (22:59):
Well, it goes back to consistency that we always talk about. Be consistent in the way that you enforce the policy. So like you said, if you, if your company wants to crack down on people using company resources for anything other than work, you better crack down on everybody who's doing it. And not just a few people don't single out somebody for special treatment just because you're trying to get rid of them, because that could lead to a lawsuit as you pointed out. But it's, it's important to just also, you can use it for perhaps performance related issues. If you have an employee whose job performance is suffering or who isn't as productive as other employees, one way to investigate that may be to look at their internet usage or email usage and find out how much time are they actually devoting to work. And if it turns out that that employee is spending more time on non-work related activities, then that's a reason for having a, a counseling session with that employee and letting them know that, yeah, we're aware of how much time you're spending on non-work activities. Give them a chance to correct the behavior. You know, give them a time period if, if we, we need to see significant improvement within the next 30, 60, 90 days. And if we don't, this is the consequence. So it's a tool that can be used when you have the underperforming employee and you wanna figure out what's going on.

Thom Jennings (24:40):
Yeah, and I think it, and, and I think also it could be used as justification for, as the workplace, again, we talked about during the pandemic, many people started working at home and they became accustomed to working at home. So they wanna work at home and they'll try to make that case, the employer could make the case that they're not productive at home based on data from the device that they're supposed to be performing their work on at home and say, well, we can't monitor you properly, so therefore you need to start coming into the office. And, you know, that may not be every day, but, but whatever. But, and I think too, it's, it's speaking from, you know, past experiences. I think employers just on occasion need to maybe send out a reminder email that says, oh, by the way we, we do mo we do have the ability to monitor everything. And everyone, they'll probably be like, oh my God, who did something <laugh>? And they may be more

Kathleen Jennings (25:33):
Vigilant. Yeah, yeah. Those, those emails are usually not very constructive. I think that's more of a, you know, walk and talk and say, Hey, if, if HR is walking by somebody's office and Cs eBay up on their computer screen, just kind of, you know, point out, Hey, remember we do monitor internet if we want to, and you need to get back to work.

Thom Jennings (25:58):
And we'll, we'll close with this cuz it's about time to wrap up. But I would say a very effective use of your electronic resources at work would be, especially if you were an HR professional or business owner, would be to listen to this podcast because it, it would be, it truly is work related. And although we do mention the word porn in it, there is absolutely nothing sexually inappropriate about any of our episodes

Kathleen Jennings (26:24):
At all. No, no. In fact, we are actively discouraging the washing of porn during work hours.

Thom Jennings (26:30):
Right. And if you as and you don't realize that, then there you are a special kind of stupid,

Kathleen Jennings (26:38):
Indeed

Thom Jennings (26:38):
Stupid is as stupid does as my friend for Indeed used to say. That's right. Alright, any takeaways that we missed here?

Kathleen Jennings (26:48):
Make sure that you have a written policy regarding the kind of monitoring you're doing and make sure you communicate that, that policy to your employees. Know your state law, know what your state law requires with regards to such policies and be consistent in the enforcement of your policy.

Thom Jennings (27:07):
And if you discover any kind of criminal activity or a potential threat to the workplace, just do the right thing. Report it.

Kathleen Jennings (27:16):
You probably need to report it. Yes.

Thom Jennings (27:18):
Yeah, absolutely. Well, as always, thank you resident expert slash sister. So contact information

Kathleen Jennings (27:27):
As always, give me an email at kj j whim law.com

Thom Jennings (27:32):
And of course to our special listeners out in Russia. Just stop, stop doing what you're doing out there in Russia, aside from listening to this podcast, which is, is productive.

Kathleen Jennings (27:44):
Do you think that's really gonna help?

Thom Jennings (27:46):
You know what? It can't hurt

Kathleen Jennings (27:49):
Every little bit.

Thom Jennings (27:50):
Every little

Kathleen Jennings (27:51):
Bit. That's beautiful.

Thom Jennings (27:53):
Alright. And you know, you know, Vladimir's monitoring all of our conversations,

Kathleen Jennings (27:58):
Well, I mean, that's a place where monitoring is, is pretty prevalent. So if they're listening to us in Russia, perhaps they'll pick up some pointers.

Thom Jennings (28:07):
Absolutely. All right. Well once again, thank you very much for listening to the Cover Your Assets podcast, the premier, the top rated podcast in Russia for United States Labor and Employment law. And thank you very much. We will see you next time. Please share, please send us emails, anything for topics. We're definitely enjoying this. But we can always, we can always get better. And just let us know what you think we can do that would make this podcast something very useful for you and of course useful for us from your host and of course my resident expert sister. We'll see you next time.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.