There are a number of class actions against companies alleging that telephone monitoring programs do not comply with state laws restricting the use of these programs. These same laws potentially affect employee monitoring, so companies should take a look at their monitoring programs to ensure they are consistent with their current employee handbooks.Consider, for example, whether new technologies and/or devices are covered in your current employee handbook. In addition, are there new outsourcing agreements that affect the transfer of electronic information to third parties?

Companies also should examine whether any real-time monitoring of email is done in a way that is consistent with the 12 two-party consent state laws (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington). These state laws can give private rights of action, with significant statutory penalties, so non-compliance can be costly.

Finally, as “bring your own device” programs — which allow employees to use their personal wireless devices such as smartphones and tablets for work activities — become the norm, companies must look at how employee ownership of devices affects monitoring and document retention rights. Care must be taken to ensure the company has the rights it needs, while maintaining an appropriate balance for employees’ rights in using their own devices.