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