The legitimacy of business monitoring of employees during work hours and using company provided resources is well established as a legal and effective means for mitigating several kinds of risk. Latto (2007) explains,
Yet, many employers have well-founded – and often compelling – reasons to engage in employee monitoring. Competent risk management involves protecting against losses from within. Thoughtful and effective employee supervision can help companies manage the risks of reduced productivity, liability claims and loss of assets. (p. 31)
Many companies have begun extending employee monitoring to include off-hours or off duty activities. Mujtaba, Griffin, and Oskal (2004) attribute reduction in employee privacy rights, including employer monitoring off-hours, to recent terrorist attacks such as the Columbine shootings and the events of 9/11 (p. 35). Companies pursuing a risk management strategy that includes off duty monitoring of employees must proceed cautiously to avoid legal action from employees for privacy violations.
Dillon, Hamilton, Thomas, and Usry (2008) describe the case Fatland v. Quaker State Corp., in which Quaker State was found to have a legitimate case for off duty monitoring of employees. Quaker State terminated Fatland’s employment for violation of the company’s conflict of interest policy when he failed to sell his ownership interest in a business that competed with Quaker State. Fatland filed a discrimination lawsuit in response. As Dillon et al. describe, “the court found that Quaker State had a legitimate concern in prohibiting employees, such as Fatland from operating off-hours businesses that would benefit from confidential information” (p. 130).
Crucial to the court ruling in Fatland v. Quaker State Corp. is the concept that the employer has a bona fide occupational qualification requirement that justifies the application of company policies to employee activities outside the workplace. Companies evaluating employee monitoring that includes off duty should adhere to best practices such as those described by Latto,
[Risk management] can be achieved by careful identification of the risks of concern, analysis of how monitoring would help manage those risks, and clear communication of expectations and consequences (p. 34).
In addition, Dillon et al. identify two key factors to ensure that the risk of privacy lawsuits related to off duty employee monitoring are mitigated: signed consent and clear electronic communications policies. Without a published conflict of interest policy that Fatland had consented to follow as an employment condition, it is uncertain that Quaker State would have prevailed.
Dillon, T., Hamilton, A., Thomas, D., & Usry, M. (2008). The importance of communicating workplace privacy policies. Employee Responsibilities and Rights Journal, 20(2), 119. Retrieved from http://proquest.umi.com.library.capella.edu/pqdweb?did=1475837351&Fmt=7&clientId=62763&RQT=309&VName=PQD
Latto, A. (2007). Managing risk from within: Monitoring employees the right way. Risk Management, 54(4), 30. Retrieved from http://proquest.umi.com.library.capella.edu/pqdweb?did=1255455821&Fmt=7&clientId=62763&RQT=309&VName=PQD
Mujtaba, B. G., Griffin, C., & Oskal, C. (2004). Emerging ethical issues in technology and countermeasures for management and leadership consideration in the twenty first century’s competitive environment of global interdependence. Journal of Applied Management and Entrepreneurship, 9(3), 34. Retrieved from http://proquest.umi.com.library.capella.edu/pqdweb?did=1178660741&Fmt=7&clientId=62763&RQT=309&VName=PQD