By Allen Smith
March Madness prompts many companies to throw up their hands and give up the fight for their employees’ attention, especially when a local college basketball team has a game in the NCAA tournament. And while some companies monitor employees’ computer use to see if they are checking brackets or streaming games, which is legal within certain boundaries, it can dampen morale.
On the other hand, monitoring can help ensure that computer systems are available for business purposes while also minimizing lost productivity.
“Streaming video alone accounts for a staggering percentage of Web traffic,” said Matt Gilley, an attorney in FordHarrison’s Spartanburg, S.C., and Asheville, N.C., offices. “If your employees are watching streaming video at their desk—such as their favorite team’s first-round matchup—they are going to be eating up a sizable portion of your bandwidth.”
It may make sense, “from a workplace morale perspective, for an employer to set parameters for March Madness activity, remind employees about its existing policies and procedures, and only monitor if it has reason to believe that an employee is engaging in activities outside of what is permitted,” said Adam Forman, an attorney with Epstein Becker Green in Chicago and Detroit.
It’s too expensive to monitor all employees, and it isn’t practical to monitor employees in real time, said John Ella, an attorney with Jackson Lewis in Minneapolis. If there is a suspected issue, though, the employer can capture data about what a specific employee has done online.
“It’s amazing what data you can collect” with products and software that can be installed on employee computers, Ella said. “You can see what websites someone views and everything they do.”
An employer that is really serious about prohibiting “social not-working” during March Madness can block the video-streaming sites, he said. An employee is less likely to stream games on a personal smartphone because that costs money, Ella noted. And a manager can ask to see what an employee has been watching on his or her own phone, if the manager suspects “cyberslacking.”
An employer that doesn’t block sites and instead monitors individual employees should be careful not to jump to conclusions about the data.
Ella recalled one employee who had a fantasy football site up on his work computer eight hours a day, every day. His manager called him in for an explanation, and he said that when he would come in at 8 a.m., he’d check his standings, then minimize the site while he worked the rest of the day. The company believed him.
Limiting Legal Claims
Most legal claims over monitoring can be prevented by having unambiguous written policies that make it clear to employees that they cannot expect any privacy when using employer-provided property, electronic devices and systems, including e-mail, instant messaging and voice mail, said Mitch Danzig, an attorney with Mintz Levin in San Diego. Policies also should clarify that “all such employer-provided property is to be used for the benefit of the employer’s business and not for personal matters,” Danzig said.
A company’s monitoring of employees should stay within certain bounds to avoid invasion of privacy or social media state law claims. “If, for example, a company learns passwords for an employee’s personal electronic accounts, the company runs a huge risk by using those passwords to access the private account,” Gilley said.
In addition, he said that “any unionized employer should take care before installing employee monitoring measures—those measures may be mandatory subjects of bargaining with the employees’ union.”
Public employers also must be careful when monitoring employee activity to respect employees’ Fourth Amendment protections against unreasonable searches and seizures, he added.
Rather than monitoring employees to catch them checking their brackets, HR may decide to use March Madness as an opportunity to build team morale. More than half of employers surveyed said March Madness activities were acceptable in moderation, according to a staffing service called OfficeTeam, Forman noted.
HR might even host an onsite screening of a local team’s game. After all, HR isn’t “just trying to bust employees,” Ella said. It’s also about building “a positive work atmosphere. It would be a great thing. Have a party! HR is not just about complying with the laws.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.