With cameras on every smart phone and computers that can track your every click, it’s hard for employers to know what’s proper in the workplace when it comes to surveillance and monitoring.

I’ve talked on the blog before about Connecticut’s Electronic Monitoring Act. But there are several other laws and theories that employers should be aware of before pushing the “power” switch on that hidden camera.

Take, for example, Conn. Gen. Stat. Sec. 52-570d.  That law prohibits the taping of a private telephone conversation without the consent of all parties to the conversation.  That can come in handy if you believe an employee is recording a phone call without your permission.

The addition of social media in the workplace has added another layer to the analysis in some states too.  While Connecticut hasn’t yet passed a law that would restrict employers from asking for the passwords of employees’ social media accounts, it wouldn’t be surprising to see that issue come up again in the new session.

What else is there? Well, for that you’ll have to come to our free labor & employment law seminar this Friday where I will be speaking on this topic with my colleague Peter Murphy.  Details are available here.  If you’re interested, just sign up. 

And we promise we won’t play this song, however tempting as it might be.

 

The Connecticut Law Tribune’s quarterly supplement on Labor & Employment Law was published this week and as usual, it is chock full of articles of relevance to attorneys and employers. 

Many of the topics have been covered here in the blog, but the additional analysis and discussion on the topics make them useful.  You can view a list of all of them here, but I’ll highlight a few. 

  • As a reminder, new I-9 forms are now in place as of earlier this month. These forms should be used for all new hires.  As the article emphasizes: “The federal government’s recent shift in immigration enforcement away from workplace encounters with employees to rigorous review of employer paperwork turns a seemingly mundane form revision into rather significant news. Employers must exercise the utmost care in completing the forms lest they expose themselves to civil or criminal liability. ” 
  • Another article sees a growing trend of workplace surveillance videos.  But the article also reminds employers that “Connecticut law prohibits employers from using electronic surveillance devices to record or monitor employees’ activities in areas designed for health, personal comfort or safeguarding employees’ possessions, such as restrooms, locker rooms or lounges.”   I’ve discussed monitoring of employees in various posts, most recently here. 
  • Free speech claims are a topic I’ve covered here extensively. One of the articles looks at whether the Connecticut Constitution afford employees any more protection than the federal counterpart.  It highlights a Superior Court case from earlier this year that rejected that argument. 

Other articles tackle subjects such as who is a full-time employee under the new healthcare mandate and immigration law changes. It’s worth taking a look.

During the holiday break, I did what many lawyers do (but will publicly deny): I watched a few “bad” reality tv shows.  

No, I didn’t watch “Here Comes Honey Boo-boo” (even I have my limits). 

But on the Food Network was a marathon of episodes of a show called “Mystery Diners”.   The show is based around so-called “Mystery Diners” who are undercover operatives that go into restaurants, bars and food service establishments with hidden cameras to perform surveillance to “find out what’s really going on when the boss isn’t around.”  

Clearly, it was time to break out the popcorn over this show. 

The episode that I flipped on didn’t disappoint, mixing employment law issues with food.  (I’ll leave it to you in the comments to decide if there is any better combination).  Here’s the way the show describes the episode:

Los Angeles restaurant owner Derrick has a problem with an employee who claims he hurt his leg on the job. This former waiter has threatened a [workers compensation] lawsuit, so to appease him, Derrick has made him a host; however, his lazy behavior has not stopped … and Derrick wonders whether the injury is even legitimate. Derrick contacts Charles for help, and Mystery Diners Shellene, Lukas and Tracey go undercover to see if this coasting host needs to be toast.  

Suffice to say that my time watching the show would probably have been better spent on nearly anything else, but I couldn’t help but think how some restaurant owners might be tempted to go through something similar. 

So, if you’re a restaurant owner in Connecticut and thinking about going on a reality show like this, let me suggest two things:

1) This is a spectacularly bad idea.

2) If you aren’t convinced that this is a bad idea, at least hire a lawyer to tell you this is a bad idea. 

There are a number of laws that may be implicated in this type of reality show “sting”.  First off, Connecticut law restricts employers from conducting surveillance, as I’ve noted before.  Connecticut law also restricts employers from conducting electronic monitoring — absent notice (which I’ve also covered here before). 

That’s not to say that you ought to do nothing when confronted with a similar situation; employees who abuse workers compensation are sometimes put under surveillance by the insurance company to determine the legitimacy of an injury.  But that is typically done by trained professionals; not television producers in search of viewers.

In addition, just because an employee has threatened a lawsuit, it does not mean that they are immune from discipline. But that discipline needs to be done carefully; otherwise, a retaliation lawsuit will be on your menu.

And keeping counsel involved, allows you, as the employer, to have privileged conversations with the attorney about legal strategy too.

So, reality television may make for good holiday watching.  But leave the hidden camera tricks for someone else.

There are limits to “spying” on an employee

A recent story in a Forbes blog disclosed how one company fired 25 employees, after monitoring its employees’ computer activity.  Of course, the CEO learned that secret recordings work both way, as one employee recorded the termination meeting. 

Connecticut employers have special obligations when it comes to employee monitoring. 

In terms of surveillance, Conn. Gen. Stat. Sec. 31-48b limits what an employer can do in two main instances:

  1. First, employers cannot operate “any electronic surveillance device or system, including but not limited to the recording of sound or voice or a closed circuit television system” for the purposes of monitoring employees in areas “designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges.”Obviously, the important limitation on the monitoring is that it cannot be done in places that are typically viewed as more private such as bathrooms or locker rooms. Nevertheless, it also extends to “lounges” as well.
  2. Second, employers also cannot “intentionally overhear or record a conversation or discussion pertaining to employment contract negotiations between the two parties, by means of any instrument, device or equipment, unless such party has the consent of all parties to such conversation or discussion.”In practical terms, this provision is intended to prevent employers from monitoring union representative discussions — something that the NLRB would typically take issue of anyways.

Connecticut also prohibits electronic monitoring without proper notice, absent some special circumstances.  I’ve covered it more extensively here, but the most important aspect is notice.

To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other “bulletin board” notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).

If an employer does not routinely monitor employees, the employer can still conduct the monitoring in situations where “(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer’s employees, or (iii) creates a hostile workplace environment.”

So what’s the takeaway for employers? If you want to “spy” on your employees, make sure that you let them know what you’re doing.

Last night, I caught a glimpse of CBS’ hit show "Undercover Boss".  The premise of the reality show is simple: A CEO goes "undercover" in the workplace to see what’s "really" happening.  In last night’s episode, the CEO of Frontier Airlines went behind the scenes to, among other things, remove human waste from airplane bathrooms.  

Putting aside the question of whether this was a good use of Sunday time, it raised an interesting question in my view: What types of surveillance can an employer use in the workplace in Connecticut?

Connecticut actually has a state law on surveillance.  Conn. Gen. Stat. Sec. 31-48b limits what an employer can do in two main instances:

  1. Employers cannot operate "any electronic surveillance device or system, including but not limited to the recording of sound or voice or a closed circuit television system" for the purposes of monitoring employees in areas "designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, locker rooms or lounges." 

    Obviously, the important limitation on the monitoring is that it cannot be done in places that are typically viewed as more private such as bathrooms or locker rooms. Nevertheless, it also extends to "lounges" as well.

    Violations of this section can range from $500 for the first offense to jail time for the third offense.
     

  2. Employers also cannot "intentionally overhear or record a conversation or discussion pertaining to employment contract negotiations between the two parties, by means of any instrument, device or equipment, unless such party has the consent of all parties to such conversation or discussion. " 

    In practical terms, this provision is intended to prevent employers from monitoring union representative discussions — something that the NLRB would typically take issue of anyways.

There are other rules in the workplace as well, such as laws prohibiting electronic monitoring without proper notice. 

So before your company’s CEO decides to become his or her own "Undercover Boss", be aware of the legal limits of such a practice.  Of course, if you just want to find out what kind of "boss" you are, CBS provides this "quiz" on its "Undercover Boss" website

 

The U.S. Supreme Court issued decisions in two important labor & employment law cases this morning. Because the cases are limited to some labor law issues and public employers, the impact on private employers may not be immediately felt. But the decisions are notable nonetheless.

First, the court issued a 5-4 decision in New Process Steel v. NLRB (download here) . The court held that the NLRB needs at least three members (of the typical five appointed members) to act on any decision.  What’s the big deal of that? Well, for the last half of the Bush administration, the NLRB was acting with only two members, not three (much less five).  All of those 500-plus decisions are now invalidated and will need to be reheard. It’ll be interesting if any cases change but this is a huge mess for the time being. 

Second, the court issued a 9-0 decision (with Scalia dissenting in part) in Ontario v. Quon (download here).  Although some had though that the court would issue an expansive ruling on the ability of all employers to monitor electronic messages, like text messages (a result that I did not foresee), the court issued a much more limited ruling today limited to the public employer context under the Fourth Amendment.

Jon Hyman, of the Ohio Employer’s Law Blog, nails the analysis of this case and cites the key portion of the opinion that leaves the broader issues very much still up in the air. 

Recall that Quon involved a police department’s review of the content of its employee’s sexually explicit text messages sent via his Department-issued pager. The Court held that the search of Quon’s text messages was reasonable and there was no violation of his 4th Amendment rights. Importantly, the court cautioned that employers not read too much into the management-side victory in this case:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency…. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications…. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve….

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

In other words: the status quo reigns, employers are left with the no more guidance on these emerging issues than before, and the best practice is still a reasonable technology policy that plainly spells out employees’ expectations concerning personal, non-work related use of employer-owned equipment.

So what are the takeaways for employers overall?

  • If you had an NLRB case decided in the last 2 years, those board decisions are invalid and there’s going to be some work for lawyers to get those decisions re-heard.
  • If you’re a public employer, review your policies regarding the monitoring of electronic messages and ensure that it complies with the court’s suggestions here.
  • If you’re a private employer, the same rules (and uncertainties) still exist. Nevertheless, compliance with at least the Connecticut Electronic Monitoring Act is still a must. 

Other early analysis: Workplace Prof blog; Lawffice Space; SCOTUSBlog.

The Connecticut Supreme Court, in a decision that will be officially released on January 5, 2010, has held that employees cannot bring a private right of action against employers that violate the state’s electronic monitoring statute. 

In Gerardi v. City of Bridgeport, two city fire inspectors were disciplined for improper job performance through the use of GPS devices, allegedly without the employees’ consent.  They claimed that the employer violated Conn. Gen. Stat. 31-48d, which prohibits an employer from electronically monitoring an employee’s activities without prior notice, and sought injunctive relief and monetary damages. 

The employees claimed that even though the statute didn’t contain a private right of action, one should be implied.  The Court disagreed:

Nothing in § 31-48d (c) entitles employees who have been subjected to electronic monitoring without notice to any specific relief or remedy. Indeed, the statute does not even provide a mechanism by which an employee can report its employer to the labor commissioner for having violated the statute. Nor does § 31- 48d provide any other administrative remedy for the employee. Instead, the statute provides solely for a pen- alty that the labor commissioner can impose once a violation of the section has been determined through an administrative hearing. Section 31-48d (c) therefore clearly delegates all powers related to violations of this statute to the labor commissioner. Accordingly, we conclude that the legislature intended the enforcement mechanism of § 31-48d to be limited to proceedings before the labor commissioner, and not to allow employees to bring civil actions.

As the court then went on to note, had the legislature intended to allow for a private remedy, "it easily could have added language".  It didn’t. And here, the Court said the language of the statute foreclosed any further arguments by the employees.

The result here is frankly not that surprising. The statute is fairly new and the Court would have had to do an end run around the language to find differently.

I’ve discussed this statute at length numerous times (including one of my earliest posts in October 2007).  Even though there may not be a private remedy for violation, it does not mean employers should simply ignore it.  Indeed, this statute can easily be followed by a posted notice in a lunch room or another conspicuous location that the employer may engage in such monitoring.  You can download the DOL’s standard notice here.  

Continuing the summer series on the basics of some employment laws in Connecticut, we turn this week to laws regarding working conditions.

Indeed, while the anti-discrimination laws and FMLA laws get all the press, there are a whole host of other laws that regulate the workplace conditions.  These are no less important and ignoring this rules can often lead to a larger investigation on workplace issues.

Here are a few to remember:

  • Meal or Rest Periods: Every employee who works at least 7 1/2 hours, is entitled to a consecutive 30 minute period for a meal.  This meal period cannot occur in the first 2 hours or last 2 hours of work, unless there is a written agreement in place.  The DOL has set up various exceptions however for public safety or because of the nature of the position.   (Conn. Gen. Stat. 31-51ii.)
     Courtesy Library of Congress
  • Breastfeeding in the Workplace: Every employee who wishes to express breast milk or breastfeed at work can do so during a meal or rest period.  Employers are obligated to find a suitable room or other location (other than a toilet stall) where the employee can express her milk in private.  (Conn. Gen. Stat. 31-40w.)
     
  • Electronic Monitoring: I’ve previously covered this more extensively in various posts like this one, but suffice to say that Connecticut allows employers to monitor their employees so long as the employees have prior written notice of such monitoring (with limited exceptions).

    To provide the notice, the employer must indicate the types of monitoring that may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.)(Conn. Gen. Stat. 31-48d.).

    If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer’s employees, or (iii) creates a hostile workplace environment."
     

  • No Polygraph Tests: Connecticut also has a blanket prohibition on the use of polygraph (lie-detector) tests by employers for employment purposes (with the exception of such police or correctional facilities) . (Conn. Gen. Stat. 31-51g.)

    Interestingly, the ban on polygraphs appears limited to situations where the employer "requests or requires" any employee or prospective employee to submit to or take a lie detector test as a condition of obtaining or continuing employment (and cannot discipline an employee for failing to do so.) Of course, that leaves open a question of whether an employer – as part of an investigation – can ask an employee to do so.  But even in that case, it may run afoul of federal laws on the subject. Suffice to say that any employer wishing to use lie detector tests should consult with counsel about it. 

(Photo: Library of Congress, Women workers employed as wipers in the roundhouse having lunch in their rest room, C. & N.W. R.R., Clinton, Iowa, 1943)

Google released a new program last week called Latitude. You can get full details here, but the gist of it is that can show your location (and the location of your friends) real-time on a map.  So, suppose you and your teenager have cell-phones — voila, you can see on a map where they are and vice-versa, all in real-time. 

I’ve been using the program for a few days on my Blackberry Bold and find it both amazing and scary at the same time. Amazing, in that I can see where my family members are at any time. And scary for that same reason. 

As with any new technology, there’s the risk of misuse.  GPS tracking has been available for sometime, but never in such a consumer-friendly format.  In the past, companies might spend tens of thousands of dollars fitting their fleet of trucks and cars with such devices to ensure that their employees are where they should be; this new technology could lower the cost to virtually nothing.  Latitude isn’t perfect, but it is now another tool that employers have at their disposal.

A few other employment-related blogs today have also started discussing the implications in the workplace (which you can find here and here.) 

Employers in Connecticut, however, have particular rules to follow, mainly in the form of the Electronic Monitoring Act

I first discussed the act in a post way back in October 2007:

[C]an an employer in Connecticut conduct electronic monitoring of its employees? The answer is a definite yes. But, of course, the answer is a bit more complicated. Connecticut has an electronic monitoring statute, Conn. Gen. Stat. Sec. 31-48d, that allows for such monitoring if (with very limited exceptions) the employees have prior written notice of such monitoring.

To provide the notice, the employer must indicate the types of monitoring which may occur, such as telephonic, key strokes, general computer usage, etc. Each employer must post this in a conspicuous place (typically, where an employer has its other "bulletin board" notices, like the minimum wage rate). Putting a reference in an employee handbook is also a wise precaution in case the notice ever gets removed from the board (and it should be noted that notice in a handbook is likely sufficient under the terms of the statute.) .

If an employer does not routinely monitor employees the employer can still conduct the monitoring in situations where "(A) an employer has reasonable grounds to believe that employees are engaged in conduct which (i) violates the law, (ii) violates the legal rights of the employer or the employer’s employees, or (iii) creates a hostile workplace environment."

So for employers, posting the notice (which you can download for free from the DOL website here) is key but educating employees about the tracking may be just as important. And understand that simply the process of providing notice to your employees may serve as an effective deterrent. 

Of course, there will be some who will find such tracking an invasion of their privacy and many employers will find such tracking completely unnecessary.  Where the proper balance lies between privacy and oversight of an employee’s performance is a question that only you — as an employer — can answer.

UPDATED 12/3/08

During this decade, electronic discovery has moved from the fringes into the mainstream when litigating employment law claims. 

What does this mean? In many cases, employers must now run keyword searches and other types of searches on their computer systems to find information that might be relevant to the lawsuit at issue.

But what search terms do lawyers and other e-discovery practioners really look for?  An article in CIO.com, suggests a top 10 list according to an e-discovery provider.

Among the key search terms?

  • "Delete this email immediately."
  • "I really shouldn’t put this in writing."
  • "I don’t want to discuss this in e-mail. Please give me a call."
  • "Don’t ask. You don’t want to know."

In employment cases, there are obviously other terms or items that will likely be looked for depending on the type of case.  If it’s a sexual harassment case that involves pornography, for example, you can be sure that various searches will be run on porn-related search terms.  (And a Newsweek article this week suggests that the search for porn will be pretty successful given the numbers of people viewing it at work…)

For employers, there are easy and no-so-easy solutions to these issues. Among the easier solutions, put up some basic internet filters so that porn sites cannot be accessed.  Among the harder solutions, come up with document retention policies that clean up e-mail on a regular basis and that following company policies is obviously key.

And remind people of a simple e-mail rule — don’t put something in an e-mail that you wouldn’t want your mother to see on the front page of the New York Times six months later.

UPDATE: A keen reader highlighted for me the original source of some of the content I had attributed to a different blog in my original post.  I have updated the post to cite to this article as the proper source of the information rather than the blog, to give full credit to the original author.  

(H/T Overlawyered)