>> PEGGY: YOUR EMPLOYER CAN LEGALLY MAWN T THR WEBSITES YOU VISIT, YOUR EMAILS, TEXTS,
SOCIAL MEDIA ACCOUNTS AND THE WHEREABOUTS OF YOUR COMPANY CAR EVEN DURING NONWORK HOURS.
BUSINESS OWNER SAY IT'S ABOUT PRODUCTIVITY BUT CRITICS CALL IT A BIG BROTHER PRACTICE.
JOINING ME ON THE LEGAL ISSUES INVOLVED IS EMPLOYMENT LAW ATTORNEY DAN EATON.
WELCOME BACK.
WHAT DO BUSINESS OWNERS SAY AS TO THE NEED AS TO WHY THEY NEED TO MONITOR THEIR EMPLOYEES
SO CLOSELY?
>> >>: THE TWO MOST FREQUENTLY GIVEN REASONS ARE PRODUCTIVITY AND MISCONDUCT.
THEY WANT TO SQUEEZE AS MUCH PRODUCTIVITY AS THEY CAN OUT OF THEIR EMPLOYEES BECAUSE
THAT MEANS HIGHER PROFITS AND WHAT THAT MEANS IS THEY ARE TRYING TO SEE WHERE THE WASTE
IS IN THEIR EMPLOYEE MOVEMENTS.
WITH MISCONDUCT, I THINK IT'S PRETTY OBVIOUS.
>> >>: YOU SHOULDN'T BE VISITING SITES, ILLEGAL SITES OR IMMORAL SITES DURING WORK HOURS.
>> >>: EXACTLY RIGHT, OR DOING THINGS YOU SHOULDN'T BE DOING ON THE WEB.
EVEN USING THE INTERNET CASUALLY, TAKING UP TOO MUCH TIME T REALLY IS A TIME WASTER SOMETIMES.
>> >>: WHAT CAN EMPLOYERS IN CALIFORNIA LEGALLY MONITOR?
>> >>: WELL, THEY CAN MONITOR ANYTHING THAT'S HOW OUT THERE PUBLICLY, OF COURSE, EVEN YOUR
SOCIAL MEDIA SITES.
WHAT THEY CANNOT DO, OF COURSE IS THEY CANNOT REQUEST OR REQUIRE EMPLOYEES OR APPLICANTS
TO GIVE THEM THEIR SOCIAL MEDIA PRIVATE PASSWORDS, BUT IT'S REALLY UP TO EMPLOYEES AND APPLICANTS
TO MONITOR THEIR PRIVACY SETTINGS.
>> >>: WHAT ABOUT CELL PHONE TEXTS, PHONE CALLS, THINGS LIKE THAT.
>> >>: A LOT OF THAT DEPEND ONS WHO ISH ISSUED THE DEVICE.
IF THEY HAVE A POLICY THAT SAYS THEY CAN AND WILL MONITOR, THEY CAN AND MANY TIMES WILL
MONITOR THOSE DEVICES.
IF IT'S PRIVATE AND YOUR USING A PRIVATE ACCOUNT AND YOUR OWN PRIVATE DEVICE WHETHER IT'S A
PHONE OR IPAD OR WHAT HAVE YOU, THEN THE LAW IS LESS CLEAR ABOUT WHAT THE EMPLOYER CAN
DO.
IF YOU'RE DOING IT ON YOUR OWN TIME WITH YOUR OWN DEVICE YOU'RE ABLE TO BE PROTECTED.
>> >>: YOU MENTIONED BUSINESS OWNERS ARE LOOKING AT THIS AS A PRODUCTIVITY SITUATION.
THERE WAS A CASE IN NEW YORK OF A MAN WHO GOT FIRED AFTER BEING MONITORED FOR SOME OF
THE STUFF HE WAS DOING WITH HIS JOB.
HOW CAN EMPLOYERS USE THIS INFORMATION?
>> >>: THEY CAN FIRE YOU OVER IT DEPENDING ON THE NATURE OF IT.
IF YOUR ATWILL, THERE'S BROAD LATITUDE TO FIRE.
THE CASE YOUR REFERRING TO IS A 2008 CASE WHERE THE PUBLIC EMPLOYEE HAD BEEN DISCIPLINED
FOR SOME TIME WASTING MISCONDUCT.
THE EMPLOYER WANTED TO FIND IF IT WAS STILL GOING ON, SO THEY ATTACHED A GPS TO HIS PRIVATE
CAR.
THEY FOUND OUT HE WAS WASTING TIME AND THEY FIRED HIM A AN INTERMEDIATE NEW YORK COURT
OF APPEALS UPHELD THAT FIRING.
THEY SAID THE EMPLOYER THE STATE DEPARTMENT OF LABOR, HAD AN INTEREST IN ITS OWN INTEGRITY
AND PROTECTING THE WASTE OF TAX PAYER MONEY.
>> >>: SOME WOULD SAY THE GOVERNMENT CAN'T PLACE A GPS ON A SUBJECT'S CAR WITHOUT A COURT
ORDER, THEY CAN'T ACCESS YOUR COMPUTER WITHOUT A SEARCH WARRANT, HOW COME EMPLOYERS ARE GIVEN
THAT RIGHT?
>> >>: EMPLOYERS IN BROAD TERMS TYPICALLY DON'T HAVE THE CONSTITUTIONAL RESTRAINTS THAT
APPLY TO THE GOVERNMENT.
HERE IN CALIFORNIA, THE CONSTITUTIONAL RIGHT TO PRIVACY APPLIES TO PRIVATE EMPLOYERS AND
PUB HK EMPLOYERS.
HERE'S WHAT IT AMOUNTS TO.
IF YOUR UNON NOTICE FROM YOUR EMPLOYER, YOUR REASONABLE EXPECTATION OF PRIVACY SHRINKS
AND THAT ALLOWS THE EMPLOYER TO DO A LOT MORE THAN HE OTHER WISE COULD.
>> >>: WHAT DO EMPLOYERS HAVE TO DISCLOSE AND WHEN DID DOO THEY HAVE TO DISCLOSE IT?
>> >>: DEPENDING ON THE SITUATION, THEY MAY NOT HAVE TO DISCLOSE IT AT ALL.
THERE WAS A VIDEO SURVEILLANCE CASE THAT SAID IT WAS OKAY DEPENDING ON THE NATURE OF IT
HARM THAT WAS INVOLVED.
THE BOTTOM LINE IS THAT IF AN EMPLOYER DOES DISCLOSE T GIVES THEM MUCH MORE RIGHT TO REVIEW
AND MONITOR THIS BEHAVIOR THAN IF THEY DON'T.
MOST EMPLOYERS THESE DAY DO HAVE THE POLICIES THAT PUT EMPLOYER PLOYYS ON NOTICE.
>> >>: WE KNOW BEFORE IT'S HAPPENINGMENT WHAT ABOUT OUTSIDE OF WORK?
LET'S SAY YOU'RE GRIEPING ABOUT YOUR BOSS ON FACEBOOK.
IS THAT SOMETHING YOUR BOSS CAN ACCESS?
>> >>: IT DEPENDS.
I KNOW YOU HATE TO HEAR THAT FROM A LAWYER, BUT IT DEPENDS ON WHETHER IT'S PERSONAL OR
A MUTUAL AID AND BENEFIT OF IMPROVING WORK PLACE CONDITIONS.
THE NATIONAL LABOR RELATIONS BOARD HAS ISSUED GUIDANCE THAT SAYS IF AN EMPLOYEE IS KUNL
PLANING IN ORDER TO MAKE WORK PLACE CONDITIONS BETTER, THAT IS PROTECTED.
IF IT'S PERSONAL, THE EMPLOYER CAN TAKE ACTION AGAINST THE EMPLOYEE.
>> >>: YOUR TAKE AWAY MESSAGE TO WORKERS CONCERNED ABOUT PRIVACY ISSUES AT WORK.
>> >>: BE CAREFUL ABOUT USING COMPANYISSUED EQUIPMENT.
WHAT YOU SAY ON COMPANYISSUED EQUIPMENT, USING COMPANYISSUED ACCOUNTS, WHETHER SOCIAL MEDIA
OR EMAIL BECAUSE SOMEBODY MAY BE WATCHING.
>> >>: DAN EATON, EMPLOYMENT LAW ATTORNEY, THANKS SO MUCH FOR THIS UPDATE.