By: Alan E. Seneczko, Esq.
In a very troubling development for Wisconsin employers, a proposal to regulate an employer's ability to monitor employee use of its email system has been introduced and is quietly working its way through the legislative process. The bill, AB 30, prohibits an employer from monitoring an employee's use of a computer system owned by the employer, unless it first develops and distributes a written policy governing employee use of the system. The policy must provide notice of "all" uses that are prohibited or restricted and what types of monitoring will be used. If the employer has no policy, it is prohibited from monitoring except in certain limited circumstances (e.g., cooperation with law enforcement, prevention of appropriation of trade secrets or liability for sexual harassment, system maintenance). The law specifically prohibits an employer from monitoring Internet sites accessed without a policy in place.
What does this mean? Under the proposed law, an employee could surf porn all day long and you could not do anything about it if you did not have a written policy informing him that he was prohibited from doing it and that you would monitor the websites he visited. Particularly troubling is the fact that the law completely disregards the fact that the system is company property and access is provided by the employer. The law is also founded on the erroneous proposition that "current law does not regulate employer monitoring of employee computer use." Apparently, our state representatives are not familiar with the federal Stored Communications Act (18 USC 2701) or the state Right to Privacy law (§895.50) - both of which regulate this issue.
While it has always been our position that it is prudent for employers to have a written policy governing employee use of its computer system, to propose a law prohibiting them from disciplining employees who abuse it simply because they do not have a written policy is preposterous.
Questions? Please contact WS Shareholder and Senior Attorney Alan Seneczko in our Oconomowoc office at (262) 560-9696, or alseneczko@wesselssherman.com.
