Introduction
Workplace surveillance is a contentious area… but, the Workplace Surveillance Act makes it a little easier. This act outlines what is legal, how it can become legal, and how to deal with things that aren’t legal. So, can employers block certain websites?
Employers choose to block certain websites to improve productivity and/or due to security or legal concerns. Whether this is necessary depends on the reason and types of websites. Inappropriate websites such as gambling or adult content are not only distracting but also pose major legal risks to the business. On the other hand, social media, online shopping and video streaming websites are productivity killers but not detrimental to your business on a legal or security basis. Workplace surveillance’s impact on culture is also a relevant consideration. However, this really is a balancing act unique to each business and the culture within it. Legally speaking, employers can block certain websites and even monitor emails if there is an adequate policy in place (and the employee is explicitly aware of it). We will get into that more below.
Is workplace surveillance legal?
The legislation governing this issue is the Workplace Surveillance Act 2005 (NSW). It states that it is legal to block/monitor internet access of employees if there is a policy in place, to which the employee is aware. Let’s break it down:
Notification of workplace surveillance
Part 2 of the Act outlines that workplace surveillance of computers, including blocking certain websites, must be done in accordance with Section 12(a)(b). Section 12(a) states that surveillance is to be carried out in accordance with a policy set by the employer. Section 12(b) says that the employee needs to be notified of the policy prior to surveillance. This must be done in a manner which would make it reasonable to assume they are aware of and understand the policy – such as including the policy within the employment contract to be signed by the employee. Existing employees will also need to be notified prior to the surveillance through emailing them the policy and following up on their understanding.
Prohibited workplace surveillance
Part 3 of the Act states what workplace surveillance is prohibited. With reference to the particular topic of blocking websites, s16 precludes the employer from blocking/surveilling outside of work hours or outside of the workplace.
Covert workplace surveillance
Part 4 of the Act covers covert workplace surveillance – that being without employees explicit knowledge. In summation, it prohibits any covert surveillance without a magistrates approval. This would include any workplace surveillance that falls outside of this Act and the internal policy. If the employee is not aware of the surveillance, it is illegal. Punishment for breach can be up to 50 penalty units. Covert surveillance without authorisation is a crime punishable under the Crimes (Sentencing and Procedure) Act 1999 (NSW). There are exceptions under s21 such as prisons, law enforcement agencies and casino’s. Basically, in your average office job, unless explicitly warned and aware of workplace surveillance, it is illegal.
Read more on this in our legal guides, such as this one on workplace surveillance and a broader look at the Workplace Surveillance Act.
If you are a business this is what to include in your Surveillance Policy
Under the Workplace Surveillance Act, a policy needs to fulfill certain requirements. These include informing your employee of:
- What kind of surveillance is going to be done
- How it will be carried out
- When it will start
- If it will be continuous or intermittent
- If it will be for a specific period or on an ongoing basis
This means your policy will need to address when, where and how. As well as the scope of the surveillance – e.g. websites to be blocked/monitored. If you need help, contact one of our lawyers here.
Conclusion
An appropriate policy informing your employees of surveillance means it is legal. Covert surveillance, however, is illegal and punishable under Criminal Law.
However, whilst it is all legal, is it necessary and going to be effective? There may be significant culture consequences for your workplace, due to employee’s feeling a lack of trust and respect. Employees could also find ways around the firewall such as VPN’s undermining effectiveness.
Overall, blocking restricted, mature or inappropriate websites that threaten the legal security of your business is acceptable. Blocking social media and streaming websites will increase productivity but may cause cultural issues. It’s all about balance and ensuring mutual respect and trust between employer and employee.
For any assistance in creating your workplace policy, or, any assistance in navigating your workplace’s policies, contact one of our lawyers here.
