Legal Eye: Employee monitoring

Not adhering to conspiracy theories, I don't particularly worry about a Big Brother monitoring me. Frankly, it would be a pretty boring job - I'm a lawyer, after all. That said, it's definitely getting easier to monitor what we say, do and write.

This plugged-in and monitor-able world creates a sticky situation in employer-employee relationships. In a December 2007 letter to the Minister of Labour and Social Policy, the Polish Ombudsmen cited research finding that two-thirds of Polish employers monitor their employees' e-mails. Polish law does not specifically regulate monitoring of employee internet and e-mail use, but general guideposts exist.

Monitoring 

Employers have a right to supervise employees and their use of firm equipment. Standard office equipment these days includes a computer with internet access and telephone. I suspect that few people could claim that, while in the office, they have never made a personal telephone call or hopped on the internet in a personal matter. Whether we like it or not, however, most computer systems contain some sort of automatic features that record everything from the sites that you visit on the internet to the e-mails sent from your office e-mail address.

As a general guidepost, it is possible for employers to monitor employees' internet and e-mail use. There are, however, a couple of big caveats that must be kept in mind.

Notification

The current hot-button is notification. Must employers notify their employees that they are monitoring internet and e-mail use? In that December 2007 letter, the Ombudsman sought to require employer notification of monitoring. The Ministry of Labour and Social Policy has not taken a stance yet.

In light of all this, an employer should consider notification before monitoring. It does not have to be much - no need to paste a neon warning on every screen in the office. However, it would be appropriate to put something, for example, in the work-place by-laws (and make sure that employees know of the policy).

No reading e-mails

While notification may be up for debate, another caveat is relatively firm. Employers may not read the personal e-mails of their employees, except under exceptional circumstances. Under Polish law, secrecy of correspondence is a fundamental privacy right. Furthermore, in April 2007, a decision of the European Court of Human Rights confirmed that monitoring of e-mail and internet usage could violate the right to respect for private life and correspondence under the Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, no one but you and the addressee is supposed to read your personal e-mail correspondence without your consent.

Where this simple rule becomes more difficult is when a personal e-mail is sent from an office e-mail address or through the office server. If the e-mail is sent from the office e-mail address, presumably it relates to a business matter. But because of the criminal penalties that apply to violations of the secrecy of correspondence, an employer should have a strong rationale in place before even considering reading an employee's e-mail. 

Employee postings

Fortunately, it's not all murky. One area seems fairly clear. If an employee posts personal information on the web (whether on Myspace, Nasza-klasa.pl or another site), employers, like everyone else in cyberspace, are entitled to read all about that employee's party habits. What's not so clear is whether an employer could discipline an employee based on those postings.

Judith Gliniecki is Of Counsel to Wierzbowski Eversheds, judith.gliniecki@wierzbowski.pl