Can bosses make secret recordings of staff?

Former Clutha-Southland MP Todd Barclay faced a police investigation after recording a staff member. Photo / Mark Mitchell

Many employers in New Zealand monitor staff conduct through workplace technology.

Monitoring technology is useful to preserve business reputation, protect confidential information, and improve productivity.

No one wants to find disparaging comments online.

Nor find confidential information has been divulged to a direct competitor.

Although employers can use workplace technology to deter and detect staff misconduct, they should be mindful of privacy law and employment obligations.

Tell staff that workplace technology is monitored and clarify this in policies, so there are no surprises.

Let's take a look at cases where employers used and monitored technology, with varying results.

Secret recordings

Can you covertly record conversations with staff?

Secretly recording a conversation when you are not party to it can attract the attention of the authorities, as we have seen with the recent political debacle in Southland.

Former Clutha-Southland MP Todd Barclay faced police investigation after he recorded a critical staff member.

Former Prime Minister Bill English claimed Barclay had just "left his dictaphone on", and police closed the case after two investigations because of a lack of evidence.

You may record conversations with staff if you are a party to that conversation, but it is best to ask a staff member for their consent first. Otherwise, you could breach the staff member's privacy, and your obligations to act in good faith.

Monitor use of technology

Concerned that staff could copy confidential information for a competitor?

Monitoring technology is useful when staff have access to confidential information, or something to gain from accessing that information.

In the case of Tag Oil (NZ) Ltd v Watchorn, the employer engaged a computer forensics expert to discover that a former manager had copied valuable information during his notice period.

The Employment Relations Authority found Watchorn had accessed and copied commercially sensitive data, which included "secret recipes" for finding oil and gas fields, in a "gross data dump".

This information would be useful to his new employer, which was a direct competitor.

The authority dismissed Watchorn's defence that he had "inadvertently" downloaded more than 350,000 documents.

The employer successfully sought $65,000 in damages, plus penalties - proving that you can sue an errant employee for misuse of technology.

Use of social media

Can you require a staff member to reveal their social media posts?

Employers can access any staff social media sites that are publicly available, or where a manager has been invited to share the site.

But requiring staff to show private posts on social media could breach employment obligations and privacy law.

In Hammond v Credit Union Baywide (trading as NZCU Baywide), an employee was forced to show a post on her private Facebook page.

The executive team at NZCU had heard about a rude cake baked by its former employee, Hammond, and wanted to see evidence.

Hammond had brought a cake to cheer up former colleagues at a private dinner party. The cake was beautifully iced: "NZCU F*** YOU".

A picture was uploaded to her private Facebook page.

The HR manager required a junior staff member (who was a friend of Hammond on Facebook) to let NZCU to take a screenshot of the cake picture on Facebook.

She was told if she didn't comply, the alternative was "going down the policy and procedure track".

The Human Rights Review Tribunal did not determine whether this breached the Privacy Act because harm to Hammond resulted from NZCU's disclosure of the photograph, rather than the collection itself.

Pressuring staff to provide access to private posts on social media is likely to be considered unfairly intrusive and in breach of good faith, so don't try it at work.

Tips on monitoring staff:

• Only record your conversations with staff if you have their agreement.

• Tell staff that you monitor computer use so they are less tempted to engage in employee browsing.

• Prepare policies on monitoring of workplace technology, such as computers, CCTV and GPS.

• Follow a fair investigation that is not intrusive - don't force staff to share private Facebook posts.