If an employee uses an employer’s computer for personal tasks, is that private? Does the employer have the right to monitor the employees’ computer use? A 2005 survey by the American Management Association found that three-fourths of employers monitor employees’ internet visits; 65% used software to block visits to inappropriate websites; and over half reviewed and kept at least some email messages. Most employers explained their policy or practice to their employees.
Federal and state laws provide privacy protection for computer use. However, these laws do not apply to employers who monitor computer equipment the employer owns.Lawsuits have challenged employer monitoring of workplace computer use. Courts have consistently found in favor of employers, ruling that employees do not have a “reasonable expectation of privacy” in the computer equipment owned by the employer, even when the employees have password-protected accounts.Employers have good reasons to monitor computer use, apart from any desire to be “Big Brother.”These reasons include:
- Backing up data and email files in case of a system failure
- Preventing viruses from employees installing software on their own
- Protecting the confidentiality of trade secrets
- Preventing situations where co-workers can hold the company liable for sexual harassment or discrimination
- Tracking system capacity and correcting network problems
- Making sure an employee isn’t spending all day surfing the web
Employers have been sued by employees for claims like sexual harassment and hostile environment. For example, if an employee visits websites of pornography or hate groups at work, it can offend co-workers. In one case, an employee viewed pornography at work, thinking his screen could not be seen since it faced away from other desks, but at a certain time of day his screen reflected clearly in a nearby window. A co-worker may feel the employer knew or should have known about the offending use, but didn’t stop it. Monitoring can deter inappropriate website visits, and can allow the employer to discipline the offending employee and solve the problem quickly.Many employers have policies about computer use in an employee handbook. An employer must follow whatever written policies it has. Some handbooks forbid any personal use of workplace computers; others permit limited personal use of work computers.
Unless a written policy says otherwise, employers do not have to tell employees when their activities are being monitored, and there is no way to tell from looking at the employee’s computer. Although some software programs claim to alert the employee when their activities are being monitored, they can give a false sense of security since tech-savvy employers can get around these programs.Some employers only review individual employees’ files and web visits when there is an indication of a problem. Other employers check employees’ computer use randomly. Still others actually review everything. Keep in mind that deleted email messages and files may still be in the system, although they appear to be gone.
Reasonableness is often the key to whether an employee’s personal use of the employer’s computer causes a problem. Most employers don’t mind if an employee occasionally checks the sales at a retail store, or sends an email confirming carpool arrangements. Most employers mind if an employee visits offensive websites or sends threatening emails. Most employers mind if the employee spends an inordinate amount of time surfing the net, or working on personal projects or side businesses.
In short, employees should not assume that their personal use of their employer’s computer is in any way private. Assume that whatever you write, surf or store can be viewed by your employer, because legally it can.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.