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Employees are becoming increasingly concerned about their privacy as their employers are monitoring them electronically more closely than ever before. At the same time, certain state efforts to prevent employee electronic monitoring are not succeeding. Still, employers have some valid reasons for employee monitoring. There is little doubt that this particular debate should rage on for quite some time. THE STATISTICS A recent survey by the American Management Association shows that about 78 percent of companies in the U.S. monitor their employees in some way. Employee Internet use is monitored by 63 percent of employers; 47 percent store and review employee e-mail messages; 15 percent view employees by video; 12 percent review and record phone messages; and 8 percent review voice-mail messages. STATE EFFORTS Some states have attempted to protect employee privacy in the workplace. For example, the California State Assembly passed a bill, S.B. 147, in a 43-22 vote that would have prevented employers from monitoring employee email in many contexts. The bill would have extended some privacy protections afforded to employee telephone usage to e-mails. However, California Gov. Gray Davis vetoed the bill on Oct. 5. While S.B. 147 was vetoed, Davis did just sign into law S.B. 168, which is designed to help prevent “identity theft.” S.B. 168 requires companies to stop printing Social Security numbers on employee identification and health plan cards, as well as on other forms of identification. S.B. 168 also prospectively prohibits the printing of Social Security numbers on bank statements and other documents transmitted by mail, and it allows consumers to halt the access of others to their credit reports. Several pieces of federal legislation providing similar protections for Social Security numbers have been introduced by members of Congress this year, but at this juncture it is difficult to predict whether any will be made into law. THE RATIONALE OF EMPLOYERS Despite employees’ concerns and some state setbacks, it is important to recognize that employers cite some valid reasons for some employee monitoring. More than 75 percent of companies say that monitoring helps them combat personal use of the Internet during business hours, according to a recent study by online survey service Quick Take that was commissioned by Web- and e-mail-filtering vendor SurfControl PLC. Employers also have an incentive to ensure that employees do not unwittingly or intentionally divulge company trade secrets and intellectual property by way of their communications. Furthermore, employers want to prevent or remedy any defamatory statements made by employees in electronic and other communications. And after Sept. 11, employers more than ever want to make sure that employees are not engaging in any type of criminal activity in the workplace. PRIVACY RIGHTS Still, workers have legitimate concerns that their privacy rights might be invaded. The primary federal statute in this area is the Electronic Communications Privacy Act of 1986 (ECPA). The ECPA, codified at 18 U.S.C. �� 101 et seq., bars the intentional interception of any wire, oral or electronic communication, or the unauthorized access of stored communications. The ECPA does have three exceptions, and if any one of these applies, monitoring can take place under appropriate circumstances. The exceptions generally allow employers to monitor business-related phone calls, to monitor communications when there has been employee consent, and to retrieve and access stored e-mail messages. THE BOTTOM LINE To be safe, employers should develop effective business equipment policies, preferably with the help of legal counsel. Even employees who worry about their privacy rights would benefit from such a policy, so that they know in advance how their employers intend to monitor them. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected].

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