For many small business owners, the ability to use their computers for more than word processing or e-mail has been problematic at best. Many owners are faced with unresolved issues about when they can monitor employees using business computers and search those computers for violations of company policy— whether those policies relate to harassment, racial discrimination, or unauthorized downloading of copyrighted materials. In addition to the “what” of monitoring the use of business computers, small employers also have questions regarding the “how.”
- Have specific policies regarding the appropriate use of company computers and review them with employees. This policy should include monitoring their activities, what type of monitoring is acceptable (e.g., keystroke logging), and how you will respond to violations of the policy. The best time to develop this policy is before a problem occurs so that it can be implemented immediately and with consistency; if problems arise later in employment, you have already addressed an unacceptable activity by issuing disciplinary action or dismissal depending upon the severity of the infraction. Be sure that employees sign an acknowledgment form stating they understand the terms of the policy, including its limits on employee privacy rights and what you will do if policy violations occur.
- If the business computer is not in a public place or does not contain confidential information, then it may be OK for employees to use their personal computers at work if they are allowed by your company to do so (e.g., an employee who works from home or one who has sole access to the office). You can still disagree with this practice based on other factors (i.e., it may interfere with productivity and slow down the network). Still, it is unlikely that any “reasonable” employee would view such a policy as unlawful discrimination, particularly if you allow others to engage in similar activities (e.g., checking e-mail while on break). However, if the employee expects the employee to use a business computer exclusively for work-related activity, you should not allow employees to do otherwise.
- If an employee has reason to believe they are being monitored without knowing the monitoring or consent from the employee, there are various factors they might consider before pursuing legal action. Federal and state courts have held that employers can monitor worker activities on company computers if there is a legitimate management purpose for doing so and no unfairness to the workers resulting from it (i.e., surveillance must be justified as reasonable under the circumstances). Most cases involve employer reaction to actual incidents of suspected misconduct; thus, one would assume that responses may vary based upon the type of activity at issue. For example, suppose an employee is sending e-mails or surfing the web on a work computer and engaging in inappropriate activity. In that case, it might be reasonable for the employer to review those communications/websites without notifying that worker (i.e., to investigate the source of the problem). In contrast, it might not be reasonable for an employer to search through every hard drive on all company computers based only upon a suspicion; even then, this may still fall within the scope of “due process.”
In other words, there must be some level of concrete evidence indicating wrongdoing before you can justify searching nonpublic areas of business computer(s) during working hours. If you are in doubt about your legal authority to search a private business computer, you should consult with your attorney or seek the advice of counsel.
