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Construction Insurance Bulletin


By January 1, 2012No Comments

Employees being supervised in their work activities is an inherent element in most all employer-employee relationships. Effective supervision is a vital component in ensuring employees is completing the right work, the right way, and at the right time to make a business’s operations as efficient and profitable as possible.

Employee supervision is also necessary to discourage employees from saying things that could harm the reputation of a business, result in legal liability for a business, or reveal a business’s trade secrets. Of course, such threats are more present and concerning than ever in today’s world of advanced communication technology. It’s no longer just a question of whether or not an employee will say something inappropriate over the office phone, but rather how they use an array of work-related communication technologies such as cell phones, email accounts, and Internet browsers. As a result, many employers have turned to technology as a new means to monitor the activities of their employees.

Many employers have started to monitor the phone conversations conducted by their employees, which is usually allowed by state and federal laws for the purpose of quality control in regards to conversations between an employee and a client. Keep in mind that some states require businesses to give advanced notice to all parties involved in a call that’s being monitored. Federal law, on the other hand, allows business calls to be monitored without such advanced notice, but does require an employer to quit listening if and when they realize it’s a personal call. If a phone is designated and labeled specifically for business use only, then an employer can generally monitor calls of any nature. Additionally, employers can legally obtain a listing of every phone number dialed from a particular phone/extension and the length of the calls. Even when advanced notification isn’t required legally, employers might find doing so helpful in thwarting inappropriate communications proactively.

According to the Electronic Communications Privacy Act of 1986, employers are allowed to monitor employee e-mails when an employee provides consent, the e-mail is related to the normal course of business, and/or the e-mails are stored within an in-house network computer. The keystrokes made on an employee’s computer can even be monitored to determine how much and what type of text an employee produces.

The courts routinely have upheld an employer’s right to monitor their computer systems. For example, the court ruled against a CIA employee who downloaded pornographic material and violated the CIA’s Internet use policy. Another court ruled that there wasn’t a reasonable expectation of e-mail message privacy in a case where an employee described his management using derogatory and profane language in an e-mail.

Legal experts recommend that employers planning to monitor e-mail and Internet activity create a comprehensive, clear employee Internet and email use policy with the assistance of their legal counsel. Be sure to take the following steps:

  • The policy should clearly state Internet use rules, such as the types of files that can/can’t be downloaded and the types of Internet sites that should/shouldn’t be visited, and the disciplinary actions for offenses.
  • The policy should clearly state that employee communications on the employer’s computer system aren’t private and are subject to being monitored.
  • Use the policy to inform employees how long computer files will be stored and deleted.
  • Require employees to sign a copy of the policy before providing them with access to the system.
  • Post the key points of the policy on each computer’s login screen.

Employers should keep in mind that, despite the above precautions and legal monitoring rights, an invasion of privacy lawsuit by an employee is still a possibility. Many employers purchase employment practices liability insurance to protect their financial well-being and cover the costs of litigation and unfavorable judgments.

Employers need to keep a vigilant eye on their employees, but that doesn’t mean violating an employee’s rights during the process. Avoid a lot of undue risk by using technology to your advantage, having a clear Internet and e-mail use policy, and an employment practices liability policy.