Your employees are probably NOT using this to record anymore. A mere smartphone will do.

On Friday, I talked to over 150 attendees of our Labor & Employment seminar about workplace surveillance and monitoring.

Some of the discussion focused on whether employers can do the recording; but what about employees?

This is not some theoretical question. More and more employees are recording conversations at their workplaces on smartphones, according to recent articles.

If you do a search on the Internet, you’re likely to discover that Connecticut is a “two-party” state when it comes to recording telephone conversations.

What does that mean? In plain English, it means that both parties to a phone conversation must consent to the recording for it to be legal.  You can read the law (Conn. Gen. Stat. Sec. 52-570d) for yourself here.

Fair enough.

But if you read these materials, you’ll also see that the vast majority of them say that Connecticut is a two-party statement when it comes to all communications.

Unfortunately, don’t believe everything you read on the Internet.

For ordinary, in-person communications, Connecticut is a one-party state — meaning that only one party’s consent is needed to record a conversation.  (You can find the law regarding eavesdropping at Conn. Gen. Stat. Sec. 53a-189.) 

What does this mean in the workplace? It means that your employees can legally record conversations with their bosses and then try to use those communications as evidence to prove a discrimination claim or another employment-related claim.

Employers can set up reasonable rules in the workplace prohibiting the taping of conversations and tell employees that they cannot record it, but that only means that the records violate theemployer’s rules, not Connecticut law.

And what this also means is that the employee cannot record a conversation between two other people; one party must always consent to the conversation.

The NLRB has spoken out on whether rules on workplace recordings violate federal labor law, which I’ve covered in a prior post.

The takeaway for employers, though, in Connecticut is a simpler one: Assume that your conversations with your employees can be recorded.

Are you comfortable about what has transpired if those conversations ever get leaked to TMZ.com? If not, then use this post a wake-up call.

Of course, there are other laws that may apply as well and it’s questionable whether an claim for invasion of privacy might be able to proceed, so before you tackle this subject, talk with your preferred counsel about all the implications on a complex subject.

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.

 

Earlier this week, my law partner, Ross Garber, tweeted about a scandal developing in France regarding allegations that IKEA spied on its employees.

The New York Times reported:

A regional court in Versailles, near Paris, is now examining whether Ikea executives in France broke the law by ordering personal investigations — not only of Ms. Paulin but of hundreds of other people over the course of a decade.

A review of the court records by The New York Times indicates that Ikea’s investigations were conducted for various reasons, including the vetting of job applicants, efforts to build cases against employees accused of wrongdoing, and even attempts to undermine the arguments of consumers bringing complaints against the company. The going rate charged by the private investigators was 80 to 180 euros, or $110 to $247, per inquiry, court documents show. Between 2002 and 2012, the finance department of Ikea France approved more than €475,000 in invoices from investigators.

While IKEA has a store in New Haven, there’s been absolutely no allegations made against any of the United States stores.

Connecticut has a specific law that prohibits electronic monitoring of employees without notice (with some exceptions), Conn. Gen. Stat. Sec. 31-48d.  But Connecticut also has a specific state law on electronic surveillance as well even though it is not well known.

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.

There are times when spying is allowed. And HR blogger and columnist Suzanne Lucas suggests it may be needed when fraud is suspected, such as a workers compensation case.  But it has to be done carefully and in compliance with the law.

If you are going to spy on an employee, you need to check and double check the laws in your area to see what you are allowed to do. For your spying to have any actual value to you, it will have to be upheld in a court, so do everything by the book. Consult with your attorney (or your insurance carrier’s attorney) first. Don’t make spying your default activity. And don’t go seeking information without having some outside information first. (That is, don’t monitor your employees’ Facebook pages in the hopes that they’ll slip up, but if someone else comes to you with a copy of a picture the employee posted on Facebook, start from there.)

It would be great if you could always trust your employees to be honest in everything that they do and say. Unfortunately, when you suspect fraud, you need to act or end up paying the cost yourself. And sometimes, that involves spying.

You may love your employees, but if you’re going to spy on your employees legally, you need to do it better than some of the companies that are getting negative publicity about it.

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

 

For Americans, I want you to envision an event that is larger than three Super Bowls. Then you’ll begin to grasp how big the World Cup is.

In past years, employers in the United States have escaped much of what the rest of the world has had to deal with — a month long event that leads to great passion and excitement (and great distractions as well).  Back in 2006, there were European insurance companies offering disability plans to employers based on World Cup absences! 

But this year, there is little doubt that it is taking on a greater significance here in the United States (and in Connecticut where East Hartford recently hosted a friendly soccer match between the U.S. and the Czech Republic).  People are just more excited than they have been before.  (The New York Times said that many are viewing the U.S. as a "Soccer Country".)

Employers here have had to deal with these types of distractions before — namely the annual March Madness associated with college basketball and the Super Bowl.  The same approach to those events can and should be followed with the World Cup.

What’s a bit different though about the World Cup this year is that the most of the soccer games (being held in South Africa) are being aired between 8 a.m. and 5 p.m. — prime working hours. So, more than the other sports events that occur, this one has the potential to be more disruptive than most.   Don’t get caught off guard by the amount of interest your employees show in this even during the workday.

Here are some issues for you to consider to deal with the games over the next month or so:

  • Again, understand that the games will be played typically at 7:30a, 10a, and 2:30p EDT each day starting Friday.  In particular, the United States plays on June 18th at 10 a.m. (vs. Slovenia) and June 23rd at 10 a.m. (vs. Algeria).  But there are many other popular teams that your employees may follow (Brazil, Spain, Italy, Germany, Mexico to name a few.)  Even if you do not follow the tournament, you should be aware of what’s going on
  • What is your policy on using computers for "personal use"? Is your computer system prepared to deal with a slowdown? (If you don’t think it will happen, check out my post from 2 years ago on the "Tiger Effect" when he played a U.S. Open playoff on a Monday.)  If you are monitoring usage by employees, are you complying with the Connecticut Electronic Monitoring Act by notifying employees of such monitoring? 
  • What is your PTO or vacation policy? Are you prepared to deal with multiple requests for the same day? How flexible will you be? 
  • If you have a sizable population that you know is interested in the games, perhaps use that to your advantage by setting up televisions in the break rooms for people to watch during the lunch hour. Or encourage employees to wear their favorite team jerseys on a designated day. 
  • Of course, satisfactory performance and business behavior can continue to be expected. If your employees are displaying a little too much emotion about their team, it’s certainly proper to advise those employees to keep their emotions in check. (Of course, Connecticut is no stranger to rivalries with the Yankees and Red Sox mixing it up each year.) 

Oh, and if you’re wondering, I’m rooting for the United States, but tend to think that Spain will be the big winner.  (Of course, i reserve the right to change that prediction at any time.)

(The photos are ones that I took at  the recent World Cup warmup game between the U.S. v. Czech Republic. Copyright 2010.)

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.

When my trial is over (end of March??!!), perhaps I’ll be able to tell you all about the madness that is sometimes the Connecticut civil court system.

But in the meantime, we are blessed today with another guest blogger.  Kris Dunn, who runs the fabulous HR Capitalist Blog, is a seasoned pro in human resources. He’s got the combination of education and experience — and isn’t afraid to put it to good work on his blog. 

His full bio is here, but he’s now a Vice President of Human Resources for SourceMedical, a software company focused on serving the booming outpatient market.  He’s also a featured columnist for Workforce.com. 

Today, Kris talks about something I’ve touched on before — computer monitoring.  But instead of passing judgment on such a practice from a legal perspective, he discusses whether it is good HR practice to do so — and what it means about your workplace.  As with other guest bloggers, I’m thankful for the post. Please check out his blog.

By now, you’ve probably seen the strands of a survey by the AMA floating around the Internet, suggesting that most employers are terminating people based on their use of the Internet. In case you haven’t seen the study, let me save you some time by offering up the clips you need to know.

The 28% of employers who have fired workers for e-mail misuse did so for the following reasons:Cops violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully 65% of companies use software to block connections to inappropriate Websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

So those are the numbers. Some of it I get and support, but a lot of it smacks of items that are sooo yesterday.

First up, I get that email is a conversation, so any idea and language that you put out there is subject to all the policies that you have in your handbook. That’s good. Professional conduct, harassment policies, etc. are all applicable to what you put out there in email. That’s the way it should be. Whether someone gets a warning, or is terminated for email or web browsing related to these items, depends on a lot of factors, such as severity and past history.

Here’s my big pain point. If you are terminating someone for excessive use of the Internet, you probably haven’t done your job from a performance management standpoint. Stop me if you’ve heard this one before. Sally’s performance is lacking. Sally’s manager comes to you indicating every time he walks by Sally’s cube, she’s on Facebook. Sally’s manager wants to pull reports for that "gotcha" moment.

Is your next question "How’s Sally’s performance?" Once you’re told that the performance is less than stellar, is question number two a derivative of "Tell me about the conversations you have had with Sally about her performance?"

My strong belief – excessive Internet use isn’t a policy issue, it’s a performance issue. There’s a lot of variability across managers as to the definition of "excessive". Good luck defending the consistency issues there.

And don’t even get me started about the wisdom of blocking entire categories. Dirty sites are an obvious one, but do you really want to block social networks where you can pick up candidate referrals? Blogs as an entire category?

That’s crazy talk. Manage what’s "appropriate" in Internet use by managing performance.