Burr & Forman

10.6.2017   |   Articles / Publications

Burr Alert: Striking the Right Balance in Workplace Behavior and Privacy

Employers often struggle with the balance between effective employee management and oversight and respect for employee privacy in the workplace. Striking the right balance is a difficult task for employers seeking to uphold high standards of behavior while acknowledging boundaries in the ability to monitor, search and restrict employees’ behavior in today’s legal climate.

Below we address common methods by which employers regulate employee behavior and applicable privacy boundaries.

Searches and monitoring employee communications
Prudent employers should have in place a policy clearly delineating the employee’s lack of right to privacy over employer property, email systems or data systems. Each claim of privacy has to be evaluated based on the conditions of the workplace at issue since work environments and needs vary widely. Factors to consider include the exclusive use of a workspace or technology and the storage of personal items or information with the employer’s knowledge, consent or tolerance. The existence or lack of a policy, as discussed below, is also a consideration.

Comprehensive written policies can defeat an employee’s expectation of privacy regarding use of workplace technology and use of employer property. This is because the continued belief in privacy after notice given in the policy is not objectively reasonable. The employer should implement a policy banning personal or other objectionable use of the computer or email system, and should state whether the employer monitors the use of the employee’s computer or email (when it has the right to do so). An employee may retain a reasonable expectation of privacy if the employer fails to implement policies, or acts inconsistently with its policies or warnings. Though it is difficult to police email systems, an employer’s good faith attempts to adhere to its written policy can provide a defense to an employee’s asserted claim of privacy.

Download the full article, “Burr Alert: Striking the Right Balance in Workplace Behavior and Privacy” written by Emily A. Crow.

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