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.

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