At some point in time nearly every business owner will find themselves in need of conducting a workplace investigation. Whether you believe an employee is stealing confidential company files, or is bringing illegal substances into the workplace, it’s certainly “your business” – but is searching them actually legal or is it an invasion of privacy?
There are many types of workplace investigations that can occur in the workplace. We invite you to join PEO Advantage in the upcoming weeks for our 3-part series reviewing 3 of the most popular types of investigations: computer files, general searches, and drug testing (yes, testing – not just searching- is considered a type of investigation).
So, let’s start with computer files and forms of communication.
You’ve heard from other employees and suspect yourself that Mike in Marketing is in cahoots with a major competitor. Could he be stealing confidential data from your company and passing it along to the “enemy” right in front of your own eyes?! Before searching his computer or opening up an investigation it’s important to know what is and is not legal.
The very first step is to review your company policy. In the event that this issue is brought to a court of law, it’s important to note that the majority of courtrooms will side with the employer on a search, if the company policy was known to the employee. Most employees do not have a reasonable expectation of privacy at their desk and employers have the right to search.
Email: Many courts have found that employers are generally free to read and monitor company email communications. A survey conducted by the American Management Association (AMA) back in 2008 revealed that more than half of the responding companies monitor employee email, and one quarter of them have fired an employee for misusing email. While it’s highly recommended to have a company email policy, you as the employer still probably have the legal rights to read employee email messages sent using your equipment and your network. Always consult with an employment law professional beforehand if you do not have an email policy in place and are unsure.
Video Monitoring: Here’s another way to try and figure out if Mike is putting confidential files on a zip drive and leaving the workplace with them – but is it allowed? There is little limitation on the use of non-audio video recording. Some states have limitations regarding privacy laws, but in most instances video monitoring in the workplace is permitted.
Keylogging: Because the computer belongs to the company, employers have the right to install keylogging programs. These programs record every single keystroke an employee uses on their computer – including passwords.
There’s no denying that employee management and compliance takes valuable time away from focusing on strategic growth and exposes you to huge financial risk if not handled to the letter of the law. With more than 60 employment-related governmental regulations, compliance alone is a full-time job.
This is why thousands of business owners choose to hire a Professional Employer Organization, or PEO, to save time and money. Not to mention that a PEO provides expertise in an otherwise confusing arena: employment law. If you need to conduct an employee investigation, it is highly recommended that you consult your PEO in advance or contact an attorney that practices employment law.
For more information on workplace investigations or a specific scenario, contact PEO Advantage. And don’t forget to join us next week as we take a look at “general searches” and their limitations.