Tuesday, November 23, 2010

Employee privacy - what about it?

The issue of employee privacy featured high on my to do list this month. I had two clients who had a great deal to learn and a high price to pay because they did not understand the issue of employee privacy.

Firstly, my one client was dismissed because of the content of skype communications she had with her husband where she discussed her management and expressed her frustration that she experienced at work. She had signed an electronic communications policy and the Company claimed she breached the policy and dismissed her. Secondly, my other client, an employer, had to deal with a PA who sat on facebook and social webpages for hours at a time during working hours. The Employer had no policy in place and also discovered that the employee had been sending her confidential material via mail to friends and other contacts. Several downloads were made from websites and printed at work. This client had to spend a lot of time and money to correct this situation and to prevent this from happening again.

Whilst doing research on these two cases, I read that the Federal Cabinet in Germany has approved a draft law, which states employers can search for information about a job applicant online…but only on search engines or professional networking sites, not Facebook. This is because Facebook is a social, not professional, networking site, so the employer would be invading the applicant’s privacy.

I’m curious to see if South Africa will adopt a similar stance. The issue of employee privacy should be at the forefront of your mind, given the Protection of Personal Information Act .
Both my clients asked questions like, can an employer monitor private emails and Internet use, and are they allowed to monitor their private laptops and memory devices while they’re on company property?

As an employer, you must state in your employment contract or company policy that you have the right to monitor this. Furthermore, the employee must have signed that he/she agrees to this. If you don’t have signed consent, you may still be able to monitor activity if you have informed the employee you will, and it's for legitimate business purposes. The 'ROICA' legislation regulates this. This won't apply to private laptops where the employees may have an expectation of privacy, unless they have consented explicitly.

I strongly urge all employers to implement a policy that allows you to monitor electronic communications at the workplace and to which employees consent before you go ahead and please get all your employees to sign this policy!

It is important that staff acknowledge that they are aware of the Company’s IT Policy and that there is no guarantee or expectation of privacy on their part when using the Company’s IT systems and to this end, expressly waive any right to privacy that they may be entitled to when using the Comapny’s IT systems.

Expressly inform staff that any failure to observe and adhere to this Policy may, if applicable, result in the Company instituting disciplinary action against them, and if found guilty of such infringements this may lead to removal of their Internet privileges or dismissal, amongst other disciplinary sanctions, in terms of the Company’s Disciplinary Code.

It was sad to see how two individuals were affected negatively as a result of their failure to regard this issue in a serious light. Internet abuse and e-mail abuse is no laughing matter and if left unmanaged, it will have a detrimental effect on your profit and productivity.

If you do not have systems or policies in place to protect your business interest regarding internet and e-mail usage, you could face a serious challenge in terms of the Protection of Personal Information Act. And to all employees out there, don’t loose your job because you think the Company will not enforce their communications policy. It’s just not worth it!
For more information regarding this issue, please contact me. As always, I am happy to help.

Yours in service,
Ilene Power

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