The Eavesdropping Employer: A Twenty‐First Century Framework for Employee Monitoring

The twenty-first century continues to usher in new and increasingly-powerful technology. This technology is both a blessing and a curse in the employment arena. Sophisticated monitoring software and hardware allow businesses to conduct basic business transactions, avoid liability, conduct investigations and, ultimately, achieve success in a competitive global environment. Employees can also benefit when monitoring provides immediate feedback, keeps the workforce efficient and focused and discourages unethical/illegal behavior. The same technology, however, allows employers to monitor every detail of their employees’ actions, communications and whereabouts both inside and outside the workplace. As more and more employers conduct some form of monitoring, the practice will shortly become ubiquitous. This trend is problematic because excessive and unreasonable monitoring can: (1) invade an employee’s reasonable expectation of privacy, (2) lead employees to sneak around to conduct personal activities on work time, (3) lower morale, (4) cause employees to complain and, potentially, quit and (5) cause employees to fear using equipment even for benign work purposes.The American legal system’s effort to protect employee privacy is a patchwork of federal and state laws combined with the common law tort of intrusion upon seclusion. his regime is not properly equipped to defend against excessive invasions of privacy that come from increasingly-sophisticated monitoring practices. This article analyzes the problems with the current monitoring regime, evaluates the top contemporary monitoring techniques and proposes a framework around which Congress can craft new and more effective legislation dealing with employee monitoring. This framework classifies the top contemporary monitoring practices into four categories designed to balance employee privacy with enterprise protection - protection that occurs in the form of completing business transactions, protecting the company from liability and conducting or assisting in internal and external investigations. The categories form a sliding scale able to dictate the minimum amount of monitoring necessary to achieve the enterprise protection sought by management without excessively invading employee privacy.