Don’t get caught flat-footed when an employee gets caught red-handed! Employees’ off-duty conduct is often relevant to their on-duty responsibilities. Even minor criminal behavior or traffic infractions may be advance warning that an employee’s decision-making, safety awareness, or credibility may be compromised, making the individual an “insider threat.” Show
Ignoring such insider threats can damage an employer’s ability to mitigate liability if an employee commits an unsafe or criminal act in the course of their employment. At the same time, many employers are hesitant to delve unnecessarily into their employees’ personal lives or are uncertain as to how to respond when an employee is arrested. In this presentation, Mike Coffey, SPHR, will review the kinds of insider threats about which employers may need to be aware. He will also review policy considerations to ensure that red-flag incidents are identified and evaluated fairly. These considerations include employee self-reporting of certain incidents, periodic background checks, evaluating job-specific risks suggested by incidents, and appropriate responses to job-relevant incidents. NOTE: If you want to listen to or view the contents of this webinar, you must register on the ELA website here or, if you have previously created an account, log in using the link in the top right. After your account is created, you will have access to all past webinars. NOTE: This program is being offered twice -- once for North Asia (February 25) and once for South Asia/Pacific (February 24). The focus of both webinars is the same as described below.Click here to download the webinar power pointClick here to view the webinar Q&AProgram DescriptionWith the advancement of privacy laws globally, employers in Asia and the Pacific continue to wrestle with just how far the right of privacy extends to employees in the employment context. What actions and activities do employers have the right to monitor or at least know about, and what can they do once they uncover any wrong doing? Featuring employment lawyers from across Asia/Pacific, this webinar will examine the differences among jurisdictional laws and offer practical insight, guidance, and best practices into how employers can address the following key issues:
Speakers for North Asia
By Ann Bevitt The monitoring of employees is standard procedure in many workplaces. Although the restrictions on employee monitoring in the workplace may vary from country to country, most privacy and employment legislation recognises the advantages to employers of monitoring employees in the workplace, and accepts that such monitoring may be essential to the effective and efficient running of some businesses. Even so, employers are often obliged, either formally or informally, to take into account the adverse impact of such monitoring on employees before, and on a continuing basis, during such monitoring. The regulation of employees’ off-duty conduct may be justifiable on the same basis as the monitoring of employees’ workplace activities, in particular, to ensure the proper performance of work duties. However, employers may be subject to more policy-driven restrictions when monitoring off-duty conduct, in addition to the restrictions applicable to monitoring in the workplace. For example, legislation may prohibit the regulation of off-duty conduct which may benefit employees or society in general, such as trade union activities, or conduct which is viewed as of a purely personal nature, such as religious activities or tobacco and alcohol use. Even where such regulation is not prohibited, the same basic approach when monitoring workplace activities of balancing legitimate business needs against respect for employees’ private activities may be seen. This review will focus on the degrees to which the regulation of employees’ off-duty activities, and in particular trade union and political activities, is permitted in the UK, France, Hong Kong, and Japan. These countries have been chosen as illustrative examples of both the similarities and differences in the approaches taken when regulating employees’ off-duty conduct in Europe and the Asia-Pacific region. 1. European overviewA. Legislative frameworkArticle 8 of the European Convention on Human Rights (the Convention) introduces a general, but qualified, right to respect for private and family life and for correspondence. Similarly, Article 10 of the Convention gives a qualified right to freedom of expression and Article 11 a qualified right to freedom of assembly and association. None of these rights are absolute and there are fairly broad exceptions which may allow an employer who wishes to regulate employees’ off-duty private life, speech, or association to do so. However, where such regulation involves the manual recording or any automated processing of personal information, it must be carried out in accordance with the Data Protection Directive (the Directive), the purpose of which is to protect the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to personal data. Under the Directive, processing of personal data may only be carried out in certain circumstances, one where the employee has unambiguously granted his or her consent. However, the extent to which consent can be used in an employment context may be limited. Finally, European discrimination legislation may protect employees from discrimination in the workplace based on their off-duty activities if such activities relate to a particular characteristic of the employee which is a “protected category” for discrimination purposes, such as race, sex, disability, sexual orientation, religion or belief, and age. B. National differencesUK Under the Trade Union and Labour Relations (Consolidation) Act of 1992 (TULRA), union members are protected against dismissal, redundancy selection, or being subjected to any detriment on account of their union membership or union activities at an appropriate time. An “appropriate time” includes times outside the employee’s working hours. The Employment Act 1990 also makes it unlawful for an employer to refuse to engage a person on the grounds of his union membership, non-membership, or union activities. Employees have also sought to challenge the regulation of their off-duty conduct under the UK’s discrimination legislation. For example, an applicant was permitted to bring a race discrimination claim against HM Prison Service when he was refused employment on the grounds of his BNP membership on the basis that the Prison Service treated white racist organisations less favourably than non-white racist organisations. France Freedom to join a trade union is a fundamental right guaranteed by the French Constitution. The exercise of freedom of trade union membership is protected by discrimination legislation: employers are prevented from taking union membership into consideration when hiring employees, during their employment, or at termination. Outside work, freedom to undertake trade union activities is also protected under the right to respect for private life and of freedom of thought and opinion. 2. Asia-Pacific regionA. Hong KongUnder Chapter 11 of the Employment Ordinance, every employee has the right to be a member or an officer of a trade union and take part in the activities of the trade union at any appropriate time (outside working hours or during working hours by arrangement and with the consent of the employer). If the monitoring of an employee’s union activities has the practical effect of deterring his participation in such activities, such monitoring could be in breach of this legislation. B. JapanThe Supreme Court has indicated that restrictions on political activities outside the workplace must be rational and permissible, as determined on a case-by-case basis. The Supreme Court held that, “by being employed, employees have the duty to maintain and secure the corporate order. Ordinarily, maintaining and securing the corporate order can be achieved by regulating the acts of the workers within the workplace, or their actions that relate to their jobs. However, there may be cases when such restrictions are not sufficient. Clearly, if there is a direct relationship with the corporate order, even acts of workers outside the workplace with no relationship to their work may be the subject of restriction. A corporation is a member of society, and damage to its social reputation may impede the smooth operation of business. If, objectively speaking, the worker’s actions outside the workplace may damage the social reputation of the business, there may be cases when restriction of such activity is permissible.” However, in another decision the Supreme Court decided that a disciplinary discharge of an employee for acts outside the workplace was ineffective. This decision involved an employee who was arrested and indicted for his political activities outside the workplace and was discharged by his employer due to severe damage to its social reputation. In this case the Supreme Court stated that “in order to determine that the dishonorable actions of an employee have damaged the reputation of the business, it is not necessarily required that there be specific incidents of interruption of business or disadvantages suffered in business transactions. However, the act must be objectively determined to be considerably detrimental to the social reputation of the company, looking comprehensively at factors such as the nature of the act, circumstances of the act, the type, manner, and scale of the company’s business, the status of the company in the business world, the company’s policies, the position and duties of the employee at the company, and other relevant matters.” Further, the Protection of Personal Information of Workers (Action Guide) issued by the Japanese Ministry of Health, Labour and Welfare in 2000 prohibits the collection of personal information about workers regarding their “philosophy, faith, or religious beliefs.” Accordingly, employers should not seek to regulate the political activities of their employees outside the workplace, as doing so could result in the breach of this prohibition. 3. Off-duty = off limits?As can be seen from the above brief review, although employees may have some legislative protections in respect of the regulation of their off-duty conduct, there are circumstances where employers can properly seek to regulate what employees do, or not do in their non-working time, even if there are generally accepted benefits to society as a whole in the employees undertaking such activities, as is the case with trade union activities. However, given the fact-sensitive nature of court decisions in this arena, employers should tread very carefully when seeking to regulate such activities to avoid any liability arising out of such regulation. Ann Bevitt is a UK qualified partner in the London office of Morrison & Foerster and head of the office’s EU Privacy and Employment & Labour Groups. Ms. Bevitt has extensive expertise advising clients on international data protection and privacy issues. She is a contributing author to the book Global Employee Privacy and Data Security Law, published by BNA Books. Ms. Bevitt covers all aspects of employment law and privacy-related matters. Should it be legal for employers to monitor their employees offGenerally, an employee's off-duty conduct is off-limits as far as employers are concerned. Exceptions do exist if there is some relationship between the off-duty conduct and your business and if misconduct outside of the workplace poses a risk for your business.
Does a company have the right to monitor?Employee monitoring in the United States is completely legal. Most federal and state laws allow employers to monitor just about anything that comes in and out of company-owned devices and across their network, particularly where there is a legitimate business intent.
Is the company legally allowed to monitor employees activities during non work hours locations and activities?Federal and most state privacy laws give discretion to employers as to how far they can go with their employee monitoring programs. In some cases, employers do not have to inform employees they are being monitored, depending on their state and local laws. Some regulations do require employee consent.
What are the main reasons employers monitor workers?Employee monitoring or staff monitoring is the use of various workplace surveillance methods to gather information on the activities and location of your staff. There may be a number of reasons why employers may choose to monitor employees such as safeguarding staff, protecting resources or improving productivity.
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