Should employee use of Instant Messaging, camera phones and iPods be monitored?

Many employers ask employees to sign company equipment policies that make plain that employees have no privacy interests in their workplace communications and that provide the do's and don't's of communications. However, employers tend to focus most of their efforts on the popular forms of electronic communication: namely, email and blogging. As technology develops and further means of communicating come to the fore, employers need to be proactive in monitoring their employees' use of the not so well-known forms of electronic communication.

Instant messaging. IM-ing is a real-time dialogue between two or more people on the Interent. Many of the same issues raised by employee blogging apply with equal force for employers regarding employee IM-ing. However, some IM platforms do not provide for a retrievable record. This can have a number of consequences. For example, tracking and later proving who authored specific messages that may be the subject of harassment, defamation or trade secret disclosure claims might be difficult. Plus, because such messages can be printed but not saved on the transmitting resource, they can be susceptible to manipulation.

Morever, once specific litigation is contemplated or initiated, companies have an obligation to preserve relevant evidence, otherwise they could be charged with evidence spoliation. Companies therefore must draft their document and data retention policies to encompass IM-ing.

iPods. Yes, even iPods have workplace consequences. More and more people are living their lives to their own soundtracks through iPods. Here, too, employers should consider monitoring employee usage to ensure permissibility. Certainly, listening to an iPod can be distracting and can decrease worker productivity for certain types of jobs, but iPod usage can also be a safety issue for some jobs if failure to pay attention can lead to accidents and injuries. Additionally, now that videos are available on iPods, improper content, such as violent or sexual content, could lead to claims by others of improper and hostile work environments.

Camera phones. It is estimated that by the end of 2006, 80 percent of cell phones also will be cameras. Employers need to deal with this development. Camera phones can be used to photograph sensitive, confidential and trade secret company information. Furthermore, camera phones can be used in such a manner as to cause coworkers to feel a loss of privacy. While completely banning camera phones may not make sense, policies should be developed to allow for monitoring their usage.