Employer Email Surveillance

The use of technology by employees in the course of their employment has not only become commonplace, but has grown by leaps and bounds as new technology comes to the forefront of society.  One of the most common uses of technology by employees is the use of the company email account.  Even though the employee has their own email address on the company account, just how private is the employee’s usage and to what extent and degree can the employer monitor the employee’s usage of email and the message contents?

The answers to these questions are contained in Connecticut General Statute Section 31-48d which is entitled “Employers Engaged in Electronic Monitoring.”  Pursuant to the statute, an employer who engages in any type of electronic monitoring shall give prior written notice to all employees who may be affected, informing them of the types of monitoring which may occur.  Each employer shall post, in a conspicuous place which is readily available for viewing by its employees, a notice concerning the types of electronic monitoring which the employer may engage in. Such posting shall constitute such prior written notice.

The most important question that both employees and employers ask about these requirements is what is to be considered “electronic monitoring?”  “Electronic monitoring” means the collection of information on an employer’s premises concerning employees’ activities or communications by any means other than direct observation, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic or photo-optical systems, but not including the collection of information (A) for security purposes in common areas of the employer’s premises which are held out for use by the public, or, (B) which is prohibited under state or federal law.

The statute does provide an exception however wherein the employer is not required to provide the prior notification to employees.  This exception occurs when: (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, and (B) electronic monitoring may produce evidence of this misconduct, the employer may conduct monitoring without giving prior written notice.

As with other employee electronic monitoring statutes, Section 31-48d provides explicit penalties for employer violations.  Under the statute, the Labor Commissioner may levy a civil penalty against any person that the Commissioner finds to be in violation of portions of this statute, after a hearing is conducted.  The maximum civil penalty shall be five hundred dollars for the first offense, one thousand dollars for the second offense and three thousand dollars for the third and each subsequent offense.

If you are an employee who believes that they are being unfairly and unlawfully recorded in the workplace, or if you are an employer seeking to establish appropriate employee surveillance, please call the experienced employment counsel at Harlow, Adams & Friedman, P.C. today at 203-878-0661 for a free consultation.


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