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Privacy, Prying, and Productivity: Balancing Online Access at Work

Just a couple of decades ago, some of the biggest unsanctioned communications “perks” an employee might covet would be making a long-distance call on the company dime or using the fax for personal business when no one was looking. Then came the chain emails and funny cat videos one could sneak in between doing actual work. Now, however, an array of social media sites being constantly updated tethers many workers to information and entertainment streams that have nothing to do with their jobs and everything to do with wasting time.

Abstractly, time spent mindlessly browsing Facebook or Twitter while on the clock is time being stolen from the company. To combat the problem, it used to be that businesses could simply add a few firewalls and restrict access to certain sites. As smartphone ownership with high-speed data has become more of the norm, however, there’s less that can be done to stop employees from simply shifting their Internet play time off the company servers and into their palms. But is the time spent goofing off online really any different from time that was once wasted at the water cooler, or have workers merely taken inherent down time to its natural technological extension?

Many businesses don’t seem to think so, and they may have a point. According to a Salary.com survey, browsing Google, Facebook, LinkedIn, Amazon, YouTube, and other sites accounted for around a quarter of workers’ wasted time. It’s probably little surprise, then, that at least half of US companies monitor their employees’ Internet usage, often with commercial software designed to show what sites they’re visiting and for how long. Invasive as it may seem, it’s perfectly legal for these businesses to keep track of how their equipment and bandwidth is being used by people they’re paying to do other things.

On the other hand, businesses can get into trouble if they start going beyond seeing how employees are wasting their time and demand access to personal accounts and passwords. While there are no blanket rules on what employers can’t access, individual lawsuits and state legislation are giving more definition to the lines protecting workers, including Tennessee’s Employee Online Privacy Act of 2014, which will take effect on January 1. The law prohibits public or private employers from:

  • Requesting or requiring employees or applicants to disclose passwords that would grant employers access to their private accounts;
  • Compelling employees or applicants to add the employer as a contact or ‘friend’ to any personal social media accounts;
  • Compelling employees or applicants to access personal accounts in the employers’ presence that allows the employer to access the contents of the account; and
  • Taking adverse action against anyone exercising their rights under this law.

Of course, these protections won’t apply to company-sponsored Internet or social media accounts, and they don’t give employees free rein of the Internet. Public profiles and social media accounts are still fair game for employers to monitor their workers and applicants, and, if otherwise legal, they can still use that as the basis for hiring and other work-related decisions. Whether an employer should bother evaluating its workforce based on their activity and opinions exclusive of their jobs makes for a good debate, but there are always conflicting accounts of whether any kind of electronic monitoring makes for better employees or reduced productivity.

While the digital rights and responsibilities of workers and businesses continue to get sorted out, there are still plenty of uncertainties about what’s protected and what’s not. Whether you’re an employer looking to develop an employee Internet policy or believe you’re the victim of wrongful termination due to your online activity, our Atlanta-based lawyers are here to help. Mays & Kerr represents both plaintiffs and defendants in employment matters, including employment discrimination, wage and hour, FMLA, and more.  With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own.  If you live in Georgia or Tennessee and need an experienced employment law attorney, contact us today at 1-877-986-5529.

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