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.

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.