Is it legal to monitor employees without their knowledge?

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To managers and business owners, it is not uncommon to find in most workplaces how employees heedlessly misuse companies’ resources, and that adopting monitoring software is not spying, rather it is an effort to increase productivity and safety of employees while preventing theft.

For managers and business owners applying monitoring at the workplace is an effort to increase productivity and safety of employees while preventing theft.

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How about global employee monitoring legal considerations?

Double standards or not, what is imperative is drawing a clear line between what employees can or cannot do and what employers should and should not record. Both ends of the party, including employee monitoring software providers, must acknowledge that there exist employee monitoring boundaries, rights, and differences to such practices, emerging from countries’ policies.

According to a study carried out by the American Management Association, 80% of the major companies monitor the internet usage, phone, and email of their employees. Particularly, the ones in the financial sector are more watchful.

80% of the major companies monitor the internet usage, phone, and email of their employees.

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By the US Federal Law, employers have the right to monitor their employees as they perform their duties. Lewis Maltby, President of National Workrights Institute, however, confirms that the location where employees are being monitored matters.

By the US Federal Law, employers have the right to monitor their employees as they perform their duties.

If an employer is bent on monitoring employees in the workplace and keep tabs on what workers do all day, that is legal. But it is not legal to mount surveillance tools in areas of exclusive privacy as the cafeteria or locker rooms or bathrooms where people may be talking about their personal issues. The employers who invade such grounds could get sued and penalized.

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Employee privacy protection in the USA

For the protection of employees’ privacy invasion, the Electronic Communications Privacy Act of 1986 (ECPA) and common law Protections Against Invasion of Privacy has put some restriction on workplace monitoring.

The intentional interception of oral, wire, and electronic communication of the employees is prohibited by the ECPA. Several exceptions to this prohibition also apply. Both exceptions regard employers.

The first is the ‘Business Motive Exception’ which permits monitoring employees in the workplace through oral and electronic communications by employers as long as it shows that it was done for legitimate business reasons. Second is the ‘Approval Exception’ which allows an employee to monitor the communications using monitoring apps for employees and other means?

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Note-worthy is the fact that these laws are implemented differently in various American states.
We can now draw that in the US:

There is no federal law in the US that requires employers to notify staff on being monitored and practically no expectation of privacy for an employee using the companies devices.

EU Protection of Employee Privacy

On the contrary, in what was referred to as a landmark privacy ruling, the European Court of Human Rights had decided that employers monitoring employees in the workplace must provide notice to employees before monitoring their online communications.

The European Court of Human Rights had decided that employers must provide notice to employees before monitoring their online communications.

Limitations do subsist: Not only are employers demanded to inform their staff on the call to using monitoring systems on them, but also emails, keystrokes, screens content can only be tracked when there has been documented agreement.

Further speaking, in the EU, there are two general directives on personal data protection and these apply to employees instead. The first being the (97/66/EC) which protects individuals as regards the processing of personal data and the free movement of such data.

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The second (2002/58 which amends 97/66/EC) refers to the processing of personal data and the protection of privacy in the electronic communications sector.» (‘Data Protection at Work’ by the European Commission).

Employee privacy protection in Australia

In Australia, only a few States have workplace surveillance laws. Take for example in relation to the Workplace monitoring Act of 2005 (NSW) s10, s12, an employer can monitor an employee’s computer usage only if there is a workplace policy noted for the monitoring, and the employees are notified that their computer activity is being monitored.

In Australia, employees must be notified that their computer activity is being monitored.

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How does ethical employee monitoring apply

As per ethical employee monitoring, Joseph Lazzarotti, a principal with Jackson Lewis law firm reasons that: Ultimately, there should strike a balance by thinking through legitimate business interests and weighing them against the anticipation of privacy of employees while also taking into consideration regulatory limitations which may vary state to state, country to country.

What is the most effective approach to monitoring workers

At the end of the day, observing both the legal and ethical aspects of monitoring workers is pivotal, yet permitting the former or the latter to occur independently of each other creates increasing pressure on employees and dampens employer-employee concordance.
What’s more, the importance of utilizing monitoring software cannot be over-sensationalized. Along these lines, pulling together legitimate and social privileges of workplace recording while at the same time maintaining absolute balance and transparency could just do the ‘magic’.

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The final point of consideration is the persistent need for managers to continually increase productivity through employee performance.

Using monitoring software has been field-proven to be a very effective method if a healthy balance between business interests and privacy of employees is maintained.

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Disclaimer

This article provides general information only. This information is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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