Workplace Privacy: We'll Be Watching You
33 PagesPosted: 14 Apr 2008Last revised: 25 Jun 2014
Examining both current and historical aspects of information, privacy, and the work place, this article examines the perspective of both the employee and employer about workplace privacy. The crucial role that technology now plays in the process is also reviewed as are appropriate constitutional provisions, federal and state statutory provisions, and finally the tort theories of privacy developed initially by Justice Brandeis and Samuel Warren. Technology, employer and employee expectations, and workplace privacy are all examined with an appropriate analysis used to determine whether an employer's conduct has indeed violated an employee's privacy.
Keywords: privacy, employment, workplace, technology
Suggested Citation:Suggested Citation
Smith-Butler, Lisa, Workplace Privacy: We'll Be Watching You. Ohio Northern University Law Review, Forthcoming; NSU Shepard Broad Law Center Research Paper No. 08-005. Available at SSRN: https://ssrn.com/abstract=1119353
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|Title:||Employeemonitoring: Privacy in the workplace?|
|Source:||S.A.M. Advanced Management Journal ,|
|Abstract:||Presents information on the issue of employee privacy in Human Resource management which has been fueled by the use of various electronic monitoring systems. Common types of employeemonitoring used in the workplace; Advantages and disadvantages of monitoring employees; Reference to the Electronic Communications Privacy Act of 1986.|
|Database:||Academic Search Elite|
EMPLOYEEMONITORING: PRIVACY IN THE WORKPLACE?
Your employer may be watching and listening. Employee privacy has become a controversial issue in the field of Human Resource management as employers have more technologies available to monitor telephones, computer terminals, and voice mail. This privacy issue has been fueled by the increased use of a variety of electronic monitoring systems. Electronic monitoring is defined as "the computerized collection, storage, analysis, and reporting of information about employees' productive activities" (Office of Technology Assessment, 1987, p. 27). "Currently, as many as 26 million workers in the United States are monitored in their jobs, and this number will increase as computers are used more and more within companies and as the cost of these monitoring systems goes down" (DeTienne, 1993, p. 33). Of those monitored, 10 million have their work evaluated and pay based on the data collected (DeTienne, 1993). "By the end of the decade, as many as 30 million people may be constantly monitored in their jobs" (DeTienne, 1993, p. 33). Because of these predictions, "Electronic monitoring and surveillance have been the subject of high media profile" (Losey, 1994, p. 77).
Managers use several types of employeemonitoring systems. Some of the most commonly used are computer monitoring, which measures employee keystroke speed and accuracy; video surveillance, which detects employee theft, horseplay, and safety; spying, which uses detective techniques, when there is suspicious activity within the workplace; eavesdropping and phone tapping, which track incoming, outgoing, and the frequency of employee phone calls; and the active badge system, which tracks an employee's location within the workplace.
Despite the recent appearance of these hightech monitoring systems, employeemonitoring is not new to the business world. As a matter of fact, "employeemonitoring has been utilized in the manufacturing industry for several decades to track output, inventory, and general efficiency" (Losey, 1994, p. 77). Prior to 1913, mechanical keystroke counters (cyclometers) and other methods were used for measuring typing output, and since the 1920s telephone calls have been monitored (Attewell, 1987). What has changed in more recent years is the method of supervision and the extent of information gathering capabilities available. Electronic monitoring, although newer in origin, is intrinsically no more invasive than traditional supervision. For some employees, it may actually be less invasive than direct personal supervision.
The issue of employeemonitoring has emerged recently because of concerns for employee privacy rights. While employers wish to monitor employees' performance, employees don't want every sneeze, restroom break, or personal activity watched and heard. "American workers have almost no legal protection from employers who want to poke or prod into their personal lives" ("Privacy Invasions," 1993, p. 6). "Few workers realize that there is no federal law that protects their privacy on the job" (Alderman, 1994, p. 31). Advancements in technology, employer abuse or monitoring systems, and the lack of legislation protecting employees have all sparked concern for employee privacy. While employees generally view monitoring as a violation of privacy and a source of unneeded job stress, monitoring continues basically unregulated because employers view it as a means to increase productivity, quality, etc. Because there are advantages and disadvantages to both employers and employees, the debate over the use of monitoring lingers on.
We will discuss some of the common types of monitoring currently being conducted in the workplace along with the advantages and disadvantages argued by both sides of the debate employees and employers. An overview of current legislation governing this area will then be discussed along with some recommended guidelines if such monitoring is to occur.
Types of EmployeeMonitoring
Various types of employeemonitoring systems are used today in American workplaces. For example, mandatory drug testing, criminal background checks, and a battery of psychological assessments are almost commonplace. In addition to these pre-employment screenings, computer monitoring, video surveillance, spying, eavesdropping, investigators posing as employees, undercover operatives, personal information shared with co-workers, telephone taps, and active badges are among the most common monitoring techniques (Schultz, 1994; "Under K mart's," 1994). Some of these will be discussed in more detail.
1. Computer Monitoring. There are several types of computer monitoring systems. For instance, computer software can check employee performance accuracy and keystroke speed, particularly for those involved in word processing and data entry jobs. With the use of a video display terminal (VDT), employers can monitor the number of mistakes per hour, stroke rate for each job, the number of jobs, the accuracy of what is being typed, and the speed of employee transactions (Danaan, 1990).
This allows management to keep records of employees performance, provides the information required to set performance standards, and aids in the appraisal review process. Computer monitoring can also be used to track the amount of time employees spend away from their computer or are idle at the terminal or to see what is stored in employees' computer terminals and hard disks (Privacy Rights Clearinghouse, 1997). Not only do these systems allow employers to keep closer tabs on employees they also give employees access to information about their own performance, which they can then use to improve. In a SHRM privacy survey, "about 60% of the respondents favor the use of VDT keystroke monitoring" (Losey, 1994, p. 76). While it also allows managers to perform other tasks, because the devices do not require constant supervision of employees, computer monitoring has also been linked with increased emotional and physical stress on employees (e.g., more carpal tunnel syndrome health complaints) (Privacy Rights Clearinghouse, 1997).
2. Video Surveillance. Employers use video surveillance to monitor their employees' behaviors. Some cameras are placed in open and noticeable areas, while others may be installed secretly so employees do not know they are present. These tiny fish eye cameras can go unnoticed for weeks. At the same time, they may provide very important surveillance information. The main reason employers install such devices is to keep track of employee pilferage, horseplay, or safety hazards. According to the same SHRM survey previously noted, "about 40% of respondents believe it is the employer's right to use video surveillance" (Losey, 1994. p. 78).
3. Teams of Investigators Posing as Friends. In some organizations, it is not an unusual practice to hire "employees" to monitor the activities of other employees. For example, K mart hired a team of investigators to pose as friends of other employees, have lunch with them and an occasional beer after work, offer help in moving to a new home, befriend coworkers and write reports about conversations in the workplace, even including the number of pitchers of beer ordered by each employee (Schultz, 1994). K mart claimed they were investigating a possible theft and drug ting. However, federal law prohibits employer surveillance of union activity, and "monitoring activities must not only not target such activity, but should cease any monitoring that detects union activity" (Johnson, 1995). In 1995, the company reached a settlement with the Teamsters over the union's complaint that it had spied on union activities by agreeing to instruct investigate agencies and post notices that the company will not observe union activities (Johnson, 1995).
4. Undercover Operatives. Some employers use undercover operatives to gather information about employees. Often co-workers who have knowledge about other employees' life-styles are used. Blabbing away at the office about one's personal life may be a mistake and can even be dangerous to an employee's medical coverage. For example, when a 24-year-old legal assistant in Portland filed a worker's compensation claim for wrist pain, "operatives" interviewed her co-workers about her behavior and private life. The legal assistant had informed a co-worker about her abortion, so the company asserted that the secretary's problems weren't caused by typing but emotional stress resulting from an abortion. The legal assistant had no idea that friends in the office would be used against her (Schultz, 1994).
Several companies offer services to help employers harvest the office gossip grapevine. For example, Pinkerton Security & Investigation Services provides companies with confidential toll-free telephone lines for employees to report anonymously on the behavior of coworkers (clients include telecommunications company Northern Telecom, drug maker Merck, and forest-products company Boise Cascade). Operated 24 hours a day, the lines allow coworkers to pass along accusations that their colleagues are using drugs, drinking, stealing, committing medical fraud, or engaging in other illegal behavior. Another company, Wackenhut of Coral Gables, Florida, says it provides a hot line called "Silent Witness" to companies such as General Motors and Allied Signal (Schultz, 1994).
5. Spying. The art of spying is done when management, or someone assigned by management, secretly observes other workers or managers. The parties under investigation usually do not know what is going on. One example of spying is a case in California where a security guard for Tower Records was asked to spy and put phone taps on the phones of two managers who were suspected of having homosexual liaisons on company time. The guard was also instructed to stake out the homes of the two managers. The case came about when the guard was forced to resign because he did not feel that this activity should be part of his job.
6. Eavesdropping/Wiretapping. Eavesdropping and phone tapping are the most common methods of monitoring used by employers. Most people link phone tapping with some sort of police or FBI work, but it is commonplace in businesses, from retail stores to government offices. "The reason employers employ such tactics is to record the number, frequency, and destination of the calls" (Losey, 1994, p. 77). Telephone numbers dialed from phone extensions can also be recorded using a "pen register" that allows employers to identify not only the numbers dialed but the length of each call (Privacy Rights Clearinghouse, 1997).
Employers may also use the monitoring of calls with clients to improve quality. The results of this method may assist employers and employees to serve customers better by determining when an employee needs additional training. It may also detect if any employee is giving critical information about the company to outsiders. However, what about when employees wear a headset as part of their job and then carry on conversations with co-workers? Unless the headset has a "mute" button that allows employes to turn off the transmitter when not using the telephone, these conversations may also be monitored by employers (Privacy Rights Clearinghouse, 1997).
7. Electronic Mail (e-mail) and Voice Mail. Many employers monitor employees' e-mail and voice mail. E-mail provides options to employers to ask for "Receipt Request," "Priority Category" to see when employees use email, whether employees received the message, etc. With new technologies, employers can easily check employee e-mail and telephone voice mail, even after employees have deleted messages from their terminal or voice mail system. These messages are often permanently backed up on magnetic tape along with other data from the computer system. Although email is comparable to postal mail, "there is no federal law that prohibits an employer from reading any e-mail or computer file" (Alderman, 1994, p. 31). A 1993 MacWorld survey reported that one out of every five U.S. companies admits they search employee electronic files (Pillar, 1993), Even if an employer's electronic mail system has an option for marking messages as "private," there is no guarantee they are kept confidential (unless an employer's policy so states).
Employers may also use encryption to protect e-mail privacy, which involves the scrambling of the message at the sender's terminal and unscrambling at the receiver's terminal. This primarily is used to prevent industrial "spies" from reading e-mail, but employers may still have access to the unscrambled messages (Privacy Rights Clearinghouse, 1997).
8. Active Badge. The final type of employeemonitoring we will present, and the most controversial, is the active badge. An active badge is a credit card sized badge that an employee wears on the outside of his or her clothing so movement can be monitored in a building using his or her unique ID. "The active badge system depends on a small transmitting device. Sensors distributed throughout the workplace pick up the signals from these badges and relay them, via a low-cost network, to location servers. These servers translate the signals into information that can be accessed through the regular office LAN (Local Area Network)" (Pountain, 1993, p. 57). The badges are battery operated and can run for about a year on a tiny lithium battery. To track active badges as they move through a building, infrared sensors need to be placed in every room and corridor.
Employers use active badges mainly as a tool to discover when someone is not available. The active badge system "saves countless wasted journeys and phone calls, and reduces telephone traffic" (Pountain, 1993, p. 57). This location system has raised ethical concerns, however, because "it has the potential to be abused by overzealous management, to create almost Orwellian surveillance regimes" (Pountain, 1993, p. 58).
Advantages And Disadvantages
A question has been raised as to whether employeemonitoring is beneficial. While a few advantages and disadvantages have been presented, several additional ones are worth mentioning.
• Advantages for Employees
"Electronic monitoring offers a distinct advantage to the employee: it is objective" (Worsnop, 1993, p. 1025). This is a benefit because it provides an unbiased method of performance evaluation and prevents the interference of managers' feelings in an employee review. Electronically-generated information offers uniform and accurate feedback on past performance. Thus, the evaluation will be solely based on the quantity and quality of an employee's work, rather than on managers' opinions.
Another advantage is providing feedback to employees on their work performance. Instead of listening to a manager tell you how to do your job, you may review a tape to see exactly what you are doing wrong and judge your performance against the objective rules and standards established. In this case, monitoring is used as a tool to show employees their work habits and what they need to change to improve their performance. Employees generally like this because they can see for themselves their weak and strong points, and they can use the information to improve their work methods. Employees may also use the information to compare their performance to that of their coworkers. This knowledge can increase employee performance and efficiency. For example, a study conducted by Christopher Earley in 1988 indicated that "computer-based feedback has a greater impact on an employee's performance if he or she receives it directly from the system than if it is provided by a supervisor" (DeTienne, 1993, p. 35).
Finally, the use of computer and electronic monitoring can provide more flexibility in work locations and work hours by allowing employees to telecommute or use "flextime" system available from the employer ("Electronic surveillance," 1977).
• Disadvantages for Employees
Although the advantages are important and helpful to employees, the disadvantages that go along with employeemonitoring may outweigh the benefits. While employers argue that monitoring is an inexpensive way to increase productivity and customer service, others argue it is really the modem method of exerting control and power over labor. Monitoring has been used to determine pay and promotion decisions as well as to reinforce disciplinary actions. The AFL-CIO objects to monitoring because it "invades workers' privacy, erodes their sense of dignity and frustrates their efforts to do highquality work by a single-minded emphasis on speed and other purely quantitative measurements" (Lund, 1992, p. 54).
Objections to computer monitoring include the issue of privacy. Monitoring is intrusive and the potential for abuse exists. For example, computer data banks, telephone and video monitoring, active badges, and other monitoring techniques make the private lives of workers easier to delve into without detection. Data concerning employees' security clearance, computer applications preferred, right/left handedness, and "even how the user takes his coffee" can be maintained -- which go beyond how an employee is performing on the job (Levy, 1993, p. 3). How information gathered on employees will be used and who has access to it are questions at the center of the debate. Technology has made it too easy to gather private information and to potentially use it against the employee. For example, information can be used to discriminate or retaliate against employees by using it "to identify or harass whistleblowers, union organizers, or other dissidents within a firm or agency" (U.S. Congress, 1987, p. 2). Private information may also find its way to co-workers or prospective employers.
Other objections center around the question of fairness in how the monitoring is implemented, whether the standards are viewed as reasonable, whether the information gathered is work-related and necessary, and, finally, the effects on employees ' quality of work life (Levy, 1994). The creation of "electronic sweatshops" leads to unneeded employee pressure and stress. Stressful working conditions related to monitoring include a heavy workload, repetitive tasks, social isolation, fear of job loss, and a lack of job involvement and personal control (Levy, 1994). In a study of worker stress for the Communication Workers of America, Smith (1992, p. 21) indicated that "the monitored employees reported higher workload, less workload variation and greater workload dissatisfaction than the unmonitored employees. The monitored employees also reported less control over their jobs.., less fairness of their work standards and more frequent interactions with difficult customers."
These pressures and stressors have also been considered a major contributor to employee psychological and physical health complaints. In the Smith (1992) study above, monitored workers indicated more somatic health complaints, such as stiff/sore wrists; pain/stiffness in the shoulders, arms, legs, neck, and back; racing heart; acid indigestion and stomach patns; headaches; depression; severe fatigue/ exhaustion; extreme anxiety and high tension. "At AT&T, where computer monitoring is used extensively, at least 25% of the workforce is involved in job counseling for work-related emotional disorders" (Pai, 1997). In another example, a TWA reservation agent who has worked for the same company for 30 years says things have drastically changed. The reservation agent said that after years of stress from constant monitoring, her work and health suffered. She commented that, "I suffered nausea, severe sleep disturbance, weakened eyesight, mental confusion, headaches, muscle aches, exhaustion, and lymph node pain" (Worsnop, 1993, p. 1025). In addition, a study by the University of Wisconsin's Department of Industrial Engineering concluded that "electronic monitoring was seen as a major cause of phycological and physical health complaints among workers" (Worsnop, 1993, p. 1025). "Monitoring makes us feel like prisoners hooked up to a computer; mistreated, guilty, paranoid, enslaved, violated, angry, and driven at a relentless pace" (Worsnop, 1993, p. 1025).
There are also cases known as "bathroom break harassment" where workers' stress becomes unbearable because employees fail to take needed bathroom breaks out of fear of termination. In one example, a telephone service worker suffered a nervous breakdown (9 to 5, 1986). In another example, a United Airlines' employee was threatened with firing when her supervisor told her she want over her allotted time while she was in the bathroom and coworkers had to take extra calls to make up for her "abusive" work habits (flight reservationists are permitted 12 minutes for bathroom breaks during a 7.5 hour period) (9to5, 1986). The National Association of Working Women summed it all up by saying, "the work lives of monitored employees can be characterized by three words: invasion, stress, and fear" (Worsnop, 1993, p. 1013).
• Advantages for Employers
Although employeemonitoring may have negative effects on employees, proponents of employeemonitoring view it not as a way to hurt employees but as an efficient management technique to manage organizations, ensure quality customer service, and help employees be as productive as they can be through the use of objective feedback (Levy, 1994). Employers argue that electronic monitoring is a method that allows accurate and objective records of an employee's performance to be kept, even after his or her date of hire. The knowledge of being monitored can cause workers to increase their productivity. Studies have shown that electronic monitoring can decrease the amount of down time taken by employees during the work day and discourage extended breaks and use of company resources for personal matters ("Electronic surveillance," 1997).
Monitoring gives managers a clear picture of who are hard workers and who are unproductive. Objective feedback on employee performance and productivity can be used when conducting performance appraisals, determining raises and promotions, evaluating training effectiveness, or for deciding disciplinary action that may be necessary. Companies who make decisions based on objective, quantitative measurements of performance feel they cannot be sued for bias in promotions (U.S. Congress, 1987). According to employers, monitoring allows them to see the good things as well as the bad, and act accordingly ("Big Brother," 1987).
Many business owners feel they have no other choice in order to keep up with their competitors (Miller, 1996; Pillar, 1993). Employeemonitoring is seen as an indispensable means not only to enhance employee productivity but also to assure quality (Worsnop, 1993, p. 1025). Electronic capturing systems allow employers to ensure customers receive quality service. Obtaining information about the length of phone calls, time between calls, and the number of calls in a certain period enables the employer to implement a more efficient distribution system that can automatically route calls to free operators and also provides a more accurate accounting system that can automatically calculate time, duration, and destinations of calls (Levy, 1994).
In addition, employers feel that they have a right and a responsibility to protect their legitimate business interests through the use of electronic monitoring. Monitoring allows employers to "protect themselves from theft, boost productivity, increase safety, and hold down costs" (UFCW Action, 1993, p. 134). According to one survey, the most common reasons given by employers for electronic monitoring included investigation of industrial espionage ("Big Brother," 1987). Companies feel they must protect company secrets or they won't be secrets for long. In addition, creative employees often have the opportunity to use company resources for unauthorized projects and, when provided with computing power through the company, employees may develop software and even conduct their own businesses (Casser, 1996).
Electronic monitoring can also be used to enhance safety and protect employer and employee property. Video surveillance of parking lots can aid employers in their duty to provide a safe work environment as well as help them fight employee fraud and dishonesty. "The increasing number of negligent hiring lawsuits against companies whose employees misbehave gives business a powerful motivation to make sure they're not hiring a child molester, convicted felon, or other person whose later misconduct (should it occur) can result in a finding corporate liability" (Miller, 1996).
Employers also believe they should be able to monitor employees for signs of wrongdoing since the employer is ultimately responsible for many actions of its employees. For example, the owner of an e-mail system is responsible for all the e-mail sent on the system whether business or personal (employers must protect themselves from death threats, messages indicative of illegal activity like drug use or sexual harassment, industrial espionage, etc.) (Miller, 1996). Other situations that may cause companies to undertake monitoring include the possibility that pornographic material may be stored on an employee's hard drive, that significant amounts of software may be being used but not licensed to the corporation, which exposes the company to copyright infringement claims, that employees may be purchasing goods on-line with company credit cards, and that telephone charges for unauthorized use by noncompany individuals hacking into company computer systems and masquerading as employees may be incurred (Casser, 1996). These situations expose the employer to liability and create the need for increased surveillance and protection of corporate information.
• Disadvantages for Employers
"Unless employers are more sensitive to the needs of the monitored workers, there will be a mushrooming of workers' compensation claims and medical costs because of stress-related illnesses. In addition, labor turnover and absenteeism will increase as workers move into other occupations" (DeTienne, 1993, p. 37). For example, an article in the Harvard Review reported that turnover climbed to almost 100 percent after "a large retail chain" implemented automated monitoring of its collections staff (Pai, 1997).
A noted, stress levels and job dissatisfaction increase when workers feel they have no control over their jobs and when there is a lack of trust in the work environment. "When workers begin to feel that their employer does not trust them, their mental well-being is harmfully impacted" (Pal, 1997). The exact effect of employeemonitoring is uncertain because little research has been done on "separating the effects of monitoring from job design, equipment design, lighting, machine pacing, and other potentially stressful aspects of computerbased office worker" (U.S. Congress, 1987). However, it has been shown that working under surveillance provides a source of worry for workers (Pai, 1997).
In addition, while we have noted that electronic monitoring may increase the stress of employees, it can actually be more detrimental because it can create adverse working conditions that may, in the long run, defeat the purpose of implementing such systems. These conditions include paced work, lack of involvement, reduced task variety and clarity, reduced peer social support, reduced supervisory suppoff, fear of job loss, routinized work activities and lack of control over tasks (Pal et al., 1997).
While employers have a need to ensure employees they are performing adequately, evidence exists that monitoring can hurt both the morale of project teams and a company's esprit de corps (Pai et al., 1997). Monitoring can discourage workers from working towards team and organizational goals or from helping co-workers achieve organizational goals. "When workers are monitored on an individual basis they are given individual goals. Using data gathered through monitoring to drive employees to achieve these individual goals rather than team goals destroys the spirit of community among workers" (Pai, 1997). Thus, monitoring can encourage competition among workers rather than a team effort to achieve common goals like customer satisfaction (Pai, 1997). It is interesting to note that electronic monitoring is not used in Japan where teamwork is valued. Instead, peer pressure, teams, and management feedback pressure workers to perform. According to a Japanese executive, monitoring "would offend both managers and workers" (U.S. Congress, 1987, p. 10).
Federal Express, Bell Canada, USAA, and Northwest Airlines have all found that too much monitoring to keep work rates high "spoils service" (Bernstein, 1991). For example, when Federal Express decided it could cut costs by reducing the average time customer-service agents spent on each call, productivity, quality and morale suffered. The company made keeping calls under 140 seconds 50% of an agent's performance review. However, this decision backfired when not only did the stress of employees increase but agents cut off customers before all their questions were answered in order to meet the time quota (Bernstein, 1991). Thus, it is important to recognize the trade-offs between productivity goals and those of rule compliance. Monitoring for performance improvement should be supportive in nature and help enhance employees' skills and job performance. However, monitoring for the purpose of rule compliance is coercive and will actually increase tension between employees and management as well as among employees. Moreover, as Federal Express discovered, if a company attempts to satisfy both functions of monitoring, rule compliance will dominate and supersede the goals of performance improvement and quality.
Finally, the question remains as to whether the statistics that employers gather are an accurate representation of an employee's ability and performance. Does monitoring the number of lines of code indicate how good a programmer is? Is more better? Is faster better? "Many employees are monitored in such a way that only their speed or time is recorded, regardless of the quality of their work" (Pai, 1997). As one AT&T operator stated, "when people call you feel guilty if you stay on the line. That conversation means seconds to you, and you don't make quota that day. So you end up withholding things that might help people" (U.S. Congress, 1987).
The primary law that applies to this subject is the Electronic Communications Privacy Act of 1986 (ECPA), which is an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 (commonly known as the "wiretap law"). This law governs third-party interceptions of electronic communications, which means that the ECPA makes it illegal for any person to intentionally intercept, access, or disclose any wire, oral or electronic communication (Aftab, 1996). The ECPA prohibits third parties, the government, police or individuals from accessing or disclosing e-mail without proper authorization, such as obtaining a search warrant or prior consent from the user or recipient. Two major exceptions to the ECPA provide employers with broad rights to monitor employees. An employer may monitor employee conversations if (1) they occur during the ordinary course of business, or (2) with the employee's implied consent. Under the "business exclusion exemption," an employer may monitor phone calls in an employer-supplied telephone system by attaching a device supplied by the employer. Under this provision, the courts examine whether a reasonable business justification exists for the monitoring, whether the employee was informed about the employer's fight to monitor, and whether the employer acted consistently.
The policy makers during the Reagan Administration in the 1980s had the prevailing attitude that "business knows best" (UFCW Action, 1993, p. 135). This attitude allowed employeemonitoring systems to enter the American workplace without any established guidelines. In a way, the government assumed that employers would handle the systems properly. In the 1990s, the technology in the area of employeemonitoring has continued to advance. Because of this, the cost of monitoring systems has declined, which has enabled more employers to install monitoring systems in their workplaces.
Due to the problems resulting from employeemonitoring, Senator Paul Simon and Representative Pat Williams proposed legislation in 1991 that "would severely restrict, and in some circumstances prohibit, employers, including the federal government, from electronically monitoring employees" (Warner, 1993, p. 37). This bill is termed "The Privacy for Consumers and Workers Act" (HR 1900 and 1984) and applies to "the collection, storage, analysis, and reporting of any information on employees, transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system" (Warner, 1993, p. 37). The legislation would require advance notification to both employees and customers of electronic monitoring, specification of the personal data to be collected, times of monitoring, the use and interpretation of the data collected, and would prohibit undisclosed monitoring of rest room, dressing room and locker room facilities (Aftab, 1996; Levy, 1994). Additionally, this Act would require the following:
• Employers would not be allowed to monitor workers with five or more years of experience on the job.
• Employees who have worked between 60 days and five years could be monitored only if chosen at random and notified in writing at least 24 hours in advance of the date and time of the monitoring, which would be limited to two hours a week.
• Workers employed for less than 60 days would not be covered by the legislation.
• Data collected could not be used as the "sole basis" for evaluating employees or setting production goals.
• Employers who violate the act would be fined $10,000 for each violation.
This bill, however, has never been passed and, based on experts' opinions, it is unlikely to be passed (Aftab, 1996; Casser, 1996; Johnson, 1995; Levey, 1994). Consequently, employees have sought protection by state courts. For example, unlike the ECPA discussed above which only requires the consent of either the sending or receiving party, some state privacy statues require consent of both parties to access e-mail communications (Casser, 1996). Unfortunately, however, attempts have often been "unsuccessful in overruling the employer's right to monitor the workplace, including intercepting communications" under these state laws (AFtab, 1996; Casser, 1996).
Consequently, employees are now turning to relief under the common law tort of invasion of privacy (which exist in most states). A critical factor in prosecuting under this tort is whether the person has a "reasonable expectation of privacy" (Aftab, 1996). It appears, however, that courts frequently find no reasonable expectation of privacy exists with e-mail (e.g., Smith v. The Pillsbury Company, 1996, Pennsylvania) and also often hold that there are no restrictions on the employer on intercepting information (Aftab, 1996). Consequently, states only offer a small degree of protection to employees.
Due to this lack of legislation, employers are able to continue to set up and conduct employeemonitoring without the presence of guidelines, restriction, or regulations, leaving employees relatively defenseless in situations where employers improperly use or abuse monitoring systems.
Whether legislation to limit employeemonitoring is adopted or not, lawyers are suggesting that employers who use this practice adopt some guildines. On the one hand, the need to monitor is recognized. Employers are often held responsible for what is said and done by employees who irresponsibly misuse technology in ways that might result in the loss of confidential and proprietary information of the employer, as well as affect an organization's productivity and customer relations. On the other hand, employees expect some degree of privacy, whether it comes to accessing desks, files, e-mail or voice mail. Consequently, policies are needed to ensure that monitoring systems will benefit both employers and employees.
When considering the use of monitoring systems, employers should notify employees that they may be monitored and periodically remind employees and management of the policy. Current employees, as well as new hires, should be informed of the monitoring before it has been implemented. In addition, a company should have "a written policy, post it where employees will see it, distribute it to workers, and have them acknowledge in writing that they received a copy of the policy and that they understand it" (Warner, 1993, p. 38). Notices should also be posted when employees log onto the computer that require employees to acknowledge that they understand that the system and e-mail are not private and will be audited (Casser, 1996). Employees should be informed that employee passwords do not guarantee privacy (Johnson, 1995).
Several suggestions have been offered by The Electronic Messaging Association, attorneys, and other experts to help managers cope with monitoring and privacy issues. For example, tasks should be deliberately selected so that only important ones can accurately be assessed are monitored. Monitoring should be regularly conducted so that it reflects both "good" and "bad" work performance. Monitoring should be supplemented with data on quality as well as quantity of performance. A mechanism should be provided that allows employees to participate, correct errors, and obtain feedback. It is also important to keep monitoring in perspective -- it should not replace critical managerial skills and behaviors needed in the workplace. Backup and retention of stored mail and other material needs to be addressed. And employers need to specify how accessed information will be utilized (e.g., for training and feedback, to determine pay and promotion, for disciplinary procedures, etc.) (Casser, 1996; Johnson & Patterson, 1994; Levy, 1994; Visions, 1992).
Employers have substantial rights in monitoring employees, including phone and oral conversations. Federal and most state wiretap laws allow employers to monitor the number of times an employee uses the phone, length of conversations, numbers called, and even contents of the conversation so long as monitoring is for a reasonable business purpose. Personal calls should not be monitored beyond the time necessary to determine the calls are personal in nature. Monitoring should use regular phone equipment, preferably supplied by the telephone company, and the manner of monitoring should be reasonable (don't record all calls) (Johnson, 1995; Pai et al., 1997).
While employers are free to spy on employees almost as much as they want, that doesn't mean they should have free reign. Regarding the legality of employers to eavesdrop on oral conversations, it is recommended they do so only under one or more of the following conditions: avoid using any electronic, mechanical or other device; eavesdrop in situations where conversants could not masonably expect not to be overheard; or obtain the consent, express or implied, of one of the parties to the conversation (Johnson, 1994; Pai et al., 1997).
Voice mail messages that contain the human voice are considered "wire communication" rather than "electronic communication," and the legality of accessing voice mail messages is treated the same as live telephone calls. However, video surveillance, without sound acquisition, is not subject to federal wiretap statutes. Computer files that do not contain the human voice are neither forms of wire or electronic communication since there is no transfer or transmission of the data. Thus, access to computer files is not restricted by federal wiretap statutes, unless the computer file is transferred (e.g., attached to an e-mail message). In that case the e-mail restrictions on access and interception apply (Johnson, 1995). Electronic or computerized systems that track the number of keystrokes of employees, errors or the number and duration of customer service phone calls handled are not subject to federal wiretap statutes since they do not acquire the content of any communications (Johnson, 1995).
Corporate actions that tend to withstand the most scrutiny are those that limit "monitoring for reasonable business purposes, on prior notice to employees and consistent with employee expectations as to the use of the audited information" (Casser, 1996). Employers may also ease the acceptance of monitoring systems by restricting monitoring to situations where it serves a legitimate business purpose, such as training or evaluating workers. Areas such as "employee bathrooms, locker rooms, and dressing rooms should generally be off-limits" (Warner, 1993, p. 38).
It is also important to remember that federal laws prohibit employers from surveillance of union activity. Therefore, in monitoring activities employers must not target such activity and must cease any monitoring that detects union activity (Johnson, 1995). Employers who want to implement monitoring practices should consult legal counsel to determine whether the employer has a duty to bargain with the union over any proposed monitoring. During monitoring, employers may also uncover communications among employees who express dissatisfaction with their employment conditions. It is important to note that "federal law prohibits retaliation against employees for concerted activity relating to employment, even in a non-union context" (Johnson, 1995).
Employers must also take appropriate steps to control the dissemination of information attained through monitoring (e.g., the Americans with Disabilities Act goyems the confidentiality of medical records and information). Employees also need to be educated on handling sensitive information -- whether it is from the office, home, or elsewhere. Trade secret protection needs to consistently be monitored. For example, during the Persian Gulf War, a British general jeopardized the operation by leaving his laptop computer in his car, from which it was stolen (Reilly, 1992). Protecting "hard copies" of information is no longer sufficient security (Casser, 1996). With the increasing growth in the usage of the Internet by employees for e-mail, employment issues may become more public when communications are extended onto the Internet.
Computer system audits should be conducted within reasonable guidelines and employers should communicate auditing practices openly and clearly to employees. Any information found needs to be used appropriately to avoid damaging employee morale (Casser, 1996). It is also important to obtain the facts before taking action. "For example, firing an employee with pornographic files on his hard drive without further investigation could buy you a lawsuit. Another employee could have had access to his PC and downloaded and encrypted the files" (Casser, 1996). A policy is also needed on destroying unnecessary paper and electronic files.
Finally, employment agreements should state whether employees may do independent work or hold outside employment in order to address situations where creative employees use company resources for unauthorized projects or set up their own business during company time. Employment agreements should specify that whatever an employee develops with company resources during or after normal work hours will be the property of the company, unless specifically agreed to in writing.
Employeemonitoring presents both practical and legal dilemmas. Opponents are concerned with employer abuses, effects on employees' privacy, and the health and safety of workers, along with the accuracy of the measures. The pressure on monitored workers can be unending, and nerve-racking and can damage their physical and psychological well being (Miller, 1996). Business proponents argue their right to control the work environment and employee work rates, improve their efficiencies and competitive position, and fulfill their duty to provide a safe work environment. They add that objective, quantifiable data that does not depend on office politics and subjective evaluations leads to fair assessments. Both sides make valid points, and balancing their concerns will continue to be a critical issue during the next decade.
The employer currently has the legal environment on his side as current laws provide little protection to monitored employees. However, employers' goals cannot be attained without taking into account the human effects of computer monitoring. Employers must take care not to infringe on employees' privacy rights or to negatively affect the health and welfare of employees. Alternative monitoring techniques should be used whenever feasible. If monitoring must be done, monitoring groups or teams rather than individual employees should be considered in order to reduce individual stress and foster team spirit. The needs of both employees and employers must be considered. Ultimately, their goals should be similar: "favorable working conditions reasonable stress levels, a successful business and large 'bottom line', and good relations with the other side" (Pal, 1997).
Finally, legislation may be needed to maintain control over employers who abuse monitoring techniques. As technology advances, more sophisticated methods of employeemonitoring will enter the workplace. Consequently, the controversy over monitoring of employees will almost certainly increase in the future.
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By Jitendra M. Mishra, Management Department, Grand Valley State University and Suzanne M. Crampton, Management Department, Grand Valley State University
Dr. Jitendra has published articles on organizational behavior, international business, and personnel and labor relations
Dr. Crampton has published on organizational behavior and human resource management topics, the ADA, the FMLA, and the Equal Pay Act.
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Source: S.A.M. Advanced Management Journal, Summer98, Vol. 63 Issue 3, p4, 11p.
Item Number: 1070602