by Paul Kiser
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Paul Kiser

One of the hottest topics in the world of employment is whether or not an employer should monitor his or her Internet activities. This is a subject I’ve written about before, but it is an issue that is still emerging and has yet to have any significant case-law to provide guidance to employers.

It is well-known that a large number of employers perform a ‘Google’ search on the Internet before they hire an applicant, but now companies are feeling the need to continue to monitor an employee’s Internet activities after hire. Many experts, especially those involved in employee liability prevention support an employer’s right to monitor an employee’s Internet activities even when those activities occur off-duty and offsite. The logic is that it is prudent to aware of anything an employee might say or do that could embarrass the employer, or any indication that the employee might take an action that might involve the company and its facilities.

These are rational arguments, but I believe that monitoring an employee’s activities is opening the door to bigger liability issues. Sound odd? Here’s the scenario I see happening in three Acts.

Should the Employer be Big Brother?

Act One: A busy-body employer or manager casually checks his or her employee’s Facebook, MySpace, and/or Twitter accounts. The employer might even do a Google search on an employee from time to time. When the employer or manager finds something that they see as objectionable they confront the guilty employee and take the proper action. It becomes known throughout the company (and the employee’s family) that the employer monitors its employee’s personal Internet activity.

Act Two: An employee has been reprimanded for content they have posted on the Internet. Six months later the same employee posts information on the Internet that he  is considering suicide and describes in detail how he is going to kill himself. Two weeks later the employee carries out the suicide as described. The family is aware the employer monitors the employee’s Internet activity and sues the employer claiming that the employer should have reasonably been aware of the planned suicide and taken action.

Act Three: Companies find themselves with two polar opposite choices. Either the company does not monitor their employee’s Internet activities or the company assigns resources to constantly monitor the Internet on every employee to insure they capture any relevant data for which the company should take action.

I was trained in Human Resources under the policy that what the employee did on her or his own time was off-limits to the employer unless it had a direct impact the job performance. That policy has had to be adjusted in a world where work and off-duty time can often be hard to differentiate, and where drug testing, researching credit scores and background checks have become standard operating procedure for many companies. However, an employee’s personal Internet activities is almost impossible to track in a society that is increasing involved in hours of daily online social networking. The question is whether an employer wants to be liable for monitoring its employees 24/7/365 and being held responsible for taking the appropriate action, or whether the employer would be better served by not being sucked into liability issues that can be avoided by simply not playing the role of Big Brother ?

I know which strategy I would recommend to my clients.

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