I have spoken previously about the issue of employers monitoring employees and the legal issues that may ensue. Privacy is typically the utmost concern of employees monitored by their employers and employers have focused on following the legal process in order to properly track employee conduct. Many employers, however, have not considered the additional liability they incur with taking on the duty to monitor employee electronic communications. Employers should ensure their monitoring policies will minimize the risk when employees engage in non-work related electronic communication from work equipment.
Recently in Illinois, a judge allowed a wrongful death suit to continue against the employer after an employee killed his family. Apparently, the employee sent threats to his family from his work computer and one day carried them out. The administrator of the wife’s estate sued the employer alleging that the employer knew that the employee was conducting such communications from work and that they were negligent in failing to protect the family. One of the issues was with the policy of the employer, which allowed the company to monitor employee emails and reprimand employees for not following the policy. Based on the complaint alone, the court found that if the alleged facts are true then the employer did know about the death threats made by the employee. Although this case is in its beginning stages, employers in America will be watching this case.
The scary part for employers is that the court found that the employer voluntarily undertook this duty; this duty was not imposed on the employer by any law of the state. Thus it is critical for employers to word their internal policies in such a way as to avoid undertaking any unnecessary liability. Additionally, if the employers find no way around taking on such liability, then they must follow through on their policy and aggressively monitor employees and report anything to the proper authorities that indicate the employee is engaging in dangerous conduct.
Through the legal doctrine of respondeat superior, an employer can be liable for the actions of their employees. This is especially true when an employee is using employee equipment and at an employer-designated location. Assuming the facts indicate such, injuries by an employee while working in the scope of their duties will impose a liability on the employer.
In this case the employer argues that it is impossible for them to monitor all employee communications. Perhaps a more carefully worded policy will help or it may be that a court will impose the liability of the employer to monitor these communications.