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We hope it comes as no surprise to employers in Connecticut that the state has an electronic monitoring law which requires public and private employers to give advance notice to employees if their activities will be monitored electronically. Specifically, the statute refers to electronic monitoring as 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, photo-electronic or photo optical systems. But what really is electronic monitoring in the real world? With today’s advancements in technology, the answer continues to grow.
Examples of Electronic Monitoring
Computer tracking is probably the leading source of electronic monitoring in workplaces today. Computers by nature keep logs of almost everything – internet searches, sent and received emails, use of certain software programs – the list goes on. If you have access any of these records, even if you never look at them, you are electronically monitoring your employees.
Do you have access to an employee’s voicemail box? Are you able to check to see how many phone calls were made in a given day to a given number? Are you able to check to see how long your administrative assistant spent on the phone with her boyfriend in Ireland? You guessed it - all electronic monitoring.
Key Cards and Alarm Codes
Do your employees use key cards or passcodes to enter and exit the building? Do these devices keep a log of when an employee uses a keycard or passcode to gain access to the building or office? Seems crazy, but this too, is electronic monitoring.
This one should be obvious. Do you have a camera in a non-public area such as an office or hallway? It should be a no brainer that this is electronic monitoring.
If you are an employer in the state of Connecticut and your company gives employees access to any of the modern technology mentioned above – you should probably assume you are electronically monitoring your employees. If you are engaging in any sort of electronic monitoring, you must give prior written notice to all employees who may be affected. The notice must specifically mention the type of monitoring, e.g., video surveillance, audio recording, computer tracking, recording of phone calls, etc.
Failure to post a proper notice can result in civil penalties – $500 for your first offense and as much as $3,000 if it is found to be your third offense or more!
Exceptions to the Rule
There are, however, a few limited circumstances under which prior notice of electronic monitoring is not required. If an employer has reasonable grounds to believe an employee is engaged in (1) illegal conduct; or (2) in conduct that violates the legal rights of the employer or other employees; and electronic monitoring may produce evidence of this conduct, the employer may conduct monitoring without notice to the employee. In addition, prior notice is not required for electronic monitoring off-premises conduct, such as tracking company vehicles using GPS.
With advances in technology that allow an individual’s every move to be tracked (and with most of the population carrying a camera-ready smart phone in their pocket) there is almost no limit to where someone might be electronically monitored. When in doubt – post the Notice. Don’t put yourself in a position where you might face fines. Candid Camera might have been a popular television show for decades, but sadly Allen Funt’s reign has come and gone.
Robert G. Brody is the Founder and Managing Member of Brody and Associates, LLC, a management-side Labor, Employment, and Benefits law firm in Westport, CT. Co-author, Lindsay M. Rinehart is an associate at the Firm. If we can be of assistance in this area, please contact us at email@example.com or 203.454.0560. For more information about Brody and Associates, LLC please visit www.brodyandassociates.com.
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