October 13, 2010

The spy who nagged me

Posted in Employee Handbooks, Employee Privacy, Personnel Records, Social Media in the Workplace tagged , , , , , at 11:13 am by Tom Jacobson

Dr. Evil nagged Austin Powers.  The FBI seems to have nagged Yassir Afifi.

When 20 year old Afifi went in for a recent oil change, he noticed an antenna protruding from under his car.  His mechanic yanked on it and pulled out a magnetically mounted GPS tracking unit, battery pack and radio transmitter.  After Afifi posted pictures of the device on the internet, the FBI paid him a visit to retrieve their gear.  Afifi denies doing anything to merit such attention from the authorities.  For more detail on Afifi’s story, read FBI Busted Tracking Student, Demands GPS Spy Gear Return, MSNBC.com http://bit.ly/atOxaL.

Whether the FBI acted properly or somehow invaded Afifi’s privacy is a nagging question in some legal circles.  It reminds me of the nagging questions asked by many employers:  What privacy rights to employees have?  To what extent can an employer “spy” on employees and applicants?

The questions arise at many levels.  “Work” is now conducted via e-mail, text, Facebook, Twitter and practically every other social media that exists.  Can an employer monitor those communications?  Does it matter if the communications are work-related but are conducted on the employee’s personal computer or cell phone?  Is it permissible to use cell phones, GPS units, and other devices to track an employee’s whereabouts?  How can an employer make sure that its confidential trade secrets are not published on the web with just a click of someone’s mouse or downloaded onto the thumb drive of a departing employee?  Can an employer use Facebook, MySpace or other social media to gather information about employees or applicants?

There are no easy answers to these questions.  Generally speaking, employees have a limited right of privacy with respect to information such as their work-related medical records.  Yet, employers need to retain the right to make sure the workers they employ are actually working and not using company resources improperly.  While social media and other on-line resources can provide a wealth of information about employees and applicants, the misuse of that information by an employer can subject the employer  to legal claims.

As with so many HR issues, the solutions lie in developing policies that clearly spell out employees’ privacy rights  (or lack thereof) while on the job.  By doing so, employers will help define the limits of work-related privacy and will reduce their risk of liability for privacy-based employment claims.

Should such lawsuits really be a serious concern?  Just ask the Lower Merion School District (PA).  They just paid $610,000.00 to settle two lawsuits centering around thousands of webcam photos secretly taken of students via their school-issued laptops (Pa. school settles 2 webcam spy lawsuits for $610K,  http://yhoo.it/bmFigL).  Although that case involved public school students and not employees, the core lesson is the same — failure to proactivelyaddress these issues will be extremely costly for employers.

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