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Connecticut law now requires employers, in most circumstances, to give employees advance written notice before monitoring their electronic communications. The statute governing the electronic monitoring of employees became effective on October 1, 1998, and provides that employers must post in a “conspicuous place” a notice concerning the types of electronic monitoring that the employer conducts. The posting of the notice in a “conspicuous place” satisfies the prior notice requirement.

The new law defines electronic monitoring as the collection of information on an employer’s premises by means other than direct observation. The definition includes the use of a computer, telephone, electromagnetic, photoelectronic or photo-optical system. For most employers, the law primarily affects the monitoring of employees’ e-mail and voice-mail and employees’ use of telephones and the Internet. In addition, the statute might apply to security card key access systems, security surveillance equipment, and to shadow files on stand-alone and network computer hard-drives.

Monitoring Without Notice
Employers may monitor employees’ electronic communications without providing advance written notice in certain circumstances. Specifically, notice is not required when (1) an employer reasonably believes that one or more employees are violating the law or the legal rights of other employees or are creating a hostile work environment, and (2) monitoring may produce evidence of the misconduct. The law does not apply to evidence gathered in a criminal investigation.

The Connecticut Department of Labor is charged with enforcing this law, and a violation of the statute may result in civil penalties. The law does not provide for the recovery of damages in a private cause of action.

While the law applies to an employee’s use of the telephone, it does not alter potential liability under the Connecticut Recording Act, which provides for civil liability if a telephone conversation is tape recorded without the consent of all the parties to the conversation. The posted notice most likely does not constitute the necessary “consent” the Recording Act requires. Likewise, the new law does not alter the obligation under the Connecticut Electronic Surveillance Act to refrain from the electronic surveillance of employees in private areas such as rest rooms or locker rooms.

The Contours of a Policy
While the contours of any electronic monitoring policy depend upon the types and methods of electronic communications used in the workplace, items to consider having in the policy include:

• A statement that e-mail and the Internet may only be used for business purposes.
• A statement regarding the employer’s ownership of all electronic media, and information stored on it, including e-mail, voice mail, and computer data.
• Policies regarding authorized access to electronic media and the permissible use of passwords, security codes and user IDs.
• Policies regarding the expected conduct of employees in using electronic media.
• Policies regarding the publication, dissemination, and transmission of offensive messages or access to inappropriate or illegal Internet domains.
• Polices regarding the confidentiality of information transmitted through electronic media.
• Policies prohibiting employee participation in Internet or online chat rooms.
• A statement regarding the potential civil or criminal liability resulting from accessing illegal Internet domains or downloading or missing software in violation of copyright laws or licensing requirements.
• Policies regarding the use of software without appropriate virus protection.
• Polices regarding the reporting and investigation of misconduct with respect to the use of electronic media.