Monitoring employee activity, both on and off the job, has never been more relevant than it is in today’s increasingly wired and cost conscious world. Ten years ago, who could have imagined that disgruntled employees could let their feelings be known to literally millions of people from their P.C. at home? Who would have imagined that happy employees could waste countless hours on the job keeping track of their favorite sporting event from their cubicle, or having real-time conversations on their computer with a friend on the other side of the country? With the proliferation of the Internet and the advent of personal websites, web logs, e-mail, and ESPN.com, all of these drags on productivity have become a reality.

Unfortunately, the law has always been slow to keep up with modern advances, and the Internet and all of its progeny are no exception. All we can do is apply the law that we have to the world in which we find ourselves.

In California, an employee has a constitutionally protected right to privacy that can be enforced against a private employer. To maintain a cause of action for an invasion of the constitutional right to privacy, the plaintiff must satisfy several threshold elements. These elements are:

1) that there is a legally protected privacy interest;

2) that the employee enjoys a reasonable expectation of privacy; and

3) that the conduct of the employer constitutes a serious invasion of privacy. An employer may defend against an invasion of privacy claim by defeating any of these elements.

An employer’s written policy, acknowledged by the employee, may defeat the employee’s reasonable expectation of privacy. In fact, in a recent California case, the court found that employers can diminish an individual employee’s expectation of privacy by clearly stating in their policy that electronic communications are to be used solely for company business and that the company reserves the right to monitor or access all employee Internet or e-mail usage. This finding has broad implications that can be applied to a variety of modern monitoring scenarios.

Email Monitoring
Because the California Constitution protects employee privacy as to electronic monitoring only when employees have a “reasonable expectation of privacy,” a well crafted policy clarifying that the employer reserves the right to monitor electronic and other communications at work serves to diminish any employee privacy expectation with regard to the use of company computers, telephones, and e-mail. Such a policy, when disseminated, will preserve your right to reasonably monitor these communications, particularly e-mail on the company system.

Given that such privacy policies greatly reduce potential liability and may soon be legislated in California anyway, it makes good business sense to draft and distribute a policy now rather than later.

Internet Use
Employers can prohibit personal Internet use on a company computer. In fact, one California court has held that an employer can terminate an employee for accessing pornographic websites from home on a company computer when the employer had an appropriate electronic monitoring policy in place. In that case, the company had provided the personal computer to the employee and had a very clear policy in place preserving its right to monitor the use of company provided computers as necessary.

Employers should use care not to exceed the bounds of their rights in accessing Internet websites that employees have visited or created. Although an employer’s activities may not be an invasion of the employee’s privacy, the conduct may constitute an intrusion into protected activities, concerted action, political activities or off-duty conduct.

Web Logs
A relatively new phenomenon is “blogging.” Blogs, short for web logs, are online logs or journals in which employees (or anyone else with a computer) voice their opinions about anything they wish…including their employers. What can an employer do if an employee is disparaging the employer online?

If an employee is disseminating trade secrets, defamatory comments or is “blogging” on company time or computers, then an employer can probably safely terminate the employee. An employer may also be able to terminate an at-will employee who is bad-mouthing, ridiculing or generally denigrating the company, a boss or, worst of all, the employer’s product. However, the operative word is “may.” Taking adverse action against even at-will employees for blogging on their own time, especially when those blogs are not defamatory or do not implicate trade secrets, may raise issues involving discrimination, retaliation, and political and free speech. In many cases, your reaction to a blog entry could end up costing you much more than the original blog post ever would have. Aside from these issues, monitoring employee’s blogs also gets into the thorny area of controlling what the employee does on his or her own time.

Regulating Off-Duty Choices
While the Internet and employee monitoring are hot issues in employment law right now, offduty conduct by employees has also been making the news. Recently, some companies have begun experimenting with rules regarding their employees’ conduct away from work, particularly when that conduct impacts the employer’s health care premiums. Employees have countered by claiming that off-duty conduct is not an appropriate subject for scrutiny or control by an employer.

When an employer wants to regulate off-duty conduct it must primarily be done through contract and it must be based on a legitimate business need. For example, some employers have started programs designed to improve employee health. The most widespread of these new programs are those which attempt to prohibit smoking. Generally, these programs have been voluntary and based on incentives to quit. However, a new case in Michigan has garnered a great deal of attention because it is not a voluntary program and the employer tested its employees to ensure compliance. This program has been challenged by several employees and the employer will be forced to defend the policy in court. Regardless of the outcome of the Michigan case, California statutorily protects legal off-duty conduct by employees and healthy lifestyle policies may violate these statutory protections.

At this point there have been no California cases testing whether healthy lifestyle policies violate employee privacy rights and it is worth asking if your company wants to be the first to test those uncertain waters. It should be noted that, if such policies are not carefully considered and drafted, they could end up implicating issues other than privacy, such as the ADA (i.e., policies targeting disabilities) or age discrimination (i.e., policies targeting medical conditions such as cholesterol-levels or high blood pressure).