Pervasive monitoring of employees using the latest technology in the workplace has privacy considerations for everyone. If an employer supplies the employee with an office, a computer, an email address, and a phone one should rationally expect that employees have been, or will be, under surveillance. The right to privacy under the Constitution is not considered applicable unless one works for the federal government. (William S. Galkin, Esq., 1995) Where there is no state law, the company's written policy is enforced by the courts.
Furthermore, it is no secret that e-mail or computer monitoring by an employer is a widespread practice, and legal cases overwhelmingly favor the employer because of vague or missing state laws. For instance, a personal folder is not a private folder if that folder is on an employer's server, or on a computer the employer has provided to the employee. The courts have held that there is no legal expectation of privacy simply due to the use of an employees' chosen password, or folders the employee has labeled "private". In fact, the computer is "your employer's window into your workspace". (Privacy Rights Clearinghouse, Fact Sheet 7, 2002) Additionally, so called "Instant Messages" are not private if sent over the employer's server, and newsgroups such as the ones we use at Axia College are also subject to monitoring by the employer if one is attending classes using an employer's computer.
...employee communication now takes place over private and public networks via e-mail, or voice mail. These forms of communication are very different from telephone calls and letters. For example, after transmission and receipt, these communications are stored for an indefinite period of time on equipment under the exclusive control of the employer. Additionally, these communications can be examined without the knowledge of the communicators. As is often the case, the law has difficulty keeping pace with the issues raised by fast changing [sic] technology. (Galkin, William S. Esq, 1995 p. 1)
The use of employee monitoring equipment is increasing due to lower costs of the technology. Common expectations among corporate interests are that employees will use company owned equipment for personal use. Employers are naturally concerned that personal use of company computers will result in either the intentional, or unintentional, leaking of sensitive information. According to Kevin Bonsor, in an article on the website "How Stuff Works", incidents of sexual harassment and discrimination lawsuits stem from inappropriate or offensive e-mails that are circulating within the company. (Bonsor 2005) Even an employer's promises about workplace privacy may not be legally binding.
Usually, when an employer states a policy regarding any issue in the workplace, including privacy issues, that policy is legally binding. Policies can be communicated in various ways: through employee handbooks, via memos, and in union contracts. For example, if an employer explicitly states that employees will be notified when telephone monitoring takes place, the employer generally must honor that policy. There are usually exceptions for investigations of wrongdoing. If you are not already aware of your employer's workplace privacy policies, it is a good idea to become informed. (Privacy Rights Clearinghouse, 2001)
An emerging technology called Radio Frequency Identification (RFID) tags are being used in today's workplace. Harrah's Casino employees in Las Vegas were recently forced to wear RFID devices. This allows casino management to monitor and measure the wait-staff for time between a customer giving a drink or food order and fulfillment of that order. This employer "claims it's a matter of good customer service". (Miller, 2006).
This news article in the Las Vegas Business Press has me guessing: Who else is subject to this technology? Will salesmen have a tracking device attached to the company owned automobile they drive? Is the next logical step to surgically insert an RFID tag under the skin of employees to ensure that a sick day is spent at home, or that errands out of the office do not include side trips on company time? RFID is "used in the tracking of inanimate objects for inventory control". (Clarke, 2001) The Department of Corrections is considering this technology to help find escaped prisoners. Veterinarians offer RFID technology for animal tracking in cases of a lost or stolen pet. Can the use of RFID be far behind for the tracking of what employer's refer to as "human resources"? The term "human resources" is dehumanizing in my opinion, and lends itself to an employer's feelings of "ownership", such as the relationship between people and their pets.
Video Surveillance is lawful in the workplace in every state. Although there are valid reasons to videotape employees, such as providing law enforcement with a recording of the cash register, some video surveillance is hidden from the affected employees. Employers are not legally allowed to record audio, but video is allowed without consent or written acceptance from the employee. Most often, the employer will cite safety concerns as the reason for surveillance, or theft in the workplace, but do we truly know what motivates our employer to watch what we do during work hours? Understandably, restrooms and locker rooms are restricted in the use of video surveillance, but the door leading to the restroom can be monitored to determine how much productivity is lost due to frequent visits, or the duration of each visit.
The employer owns the phone and voicemail systems; therefore, an employees' conversation at work can be recorded, monitored, measured, and kept on file. We have all heard the recorded voice tell us "this conversation may be monitored for quality purposes". "However, if an employee receives a personal call, the employer has to stop recording immediately once the employer realizes the call is personal in nature". (Volkert p. 3 paragraph 3) Although an employer cannot "listen in" on a private conversation at work, no such limits are placed on the voicemail system. An employer may keep recorded voicemails, but may not record private conversations. This does not mean that other aspects of the employees' phone use cannot be monitored. The employer normally maintains call list records:
1. Who was called can be recorded
2. Time between calls can be measured
3. Duration of calls can be compared to an average
Employers and Employees, in the normal course of their symbiotic relationship, will find themselves at odds with each other's best interests. Employers, having selfish best interests, can gather information about their employees without their knowledge; because few laws exist that regulate surveillance in the private sector workplace. According to Kevin Bonsor:
Computers leave behind a trail of bread crumbs [sic] that can provide employers with all the information they could possibly need about an employee's [sic] computer-related activities. For employers, computers are the ultimate spy. There's little that can stop an employer from using these surveillance techniques. Employers record and eavesdrop on about 400 million phone calls per year. There are basically five methods that employers can use to track employee activities:
· Packet sniffers
· Log files
· Desktop monitoring programs
· Phones
· Closed-circuit cameras
Computer-monitoring programs carry such names as Shadow, SpyAgent, Web Sleuth and Silent Watch. The prices of these programs range from as little as $30 to thousands of dollars. The number of employers who believe that they need these programs and the relatively low cost has resulted in an emerging multi-million dollar industry called employee Internet management. (p. 2)
It is in an employees best interest to know that an employer is monitoring your internet use, and logging the time you spend at any one website. Employers have the ability to know what is being viewed, downloaded, copied, and sent from the system that they own. Termination of employment is the natural result when an employer finds out that an employee has been engaged in activity that the employer deems inappropriate. Any legal action initiated by the terminated employee is likely to be substantiated with data recorded by the employer, which is not legally considered a violation of employee privacy here in America.
Lloyd L. Rich (1995) said: "Computers and digital communication technologies present a serious challenge to our legislators, judges and legal system requiring them to react to these new developments while constantly balancing the individual's civil liberties and the needs of society." (p. 1) It has been 11 years since that statement was written, and I fear that the "needs of society" (Rich 1995) have been eroded in the courts. Employers have carte blanche to do whatever they want; whatever they feel is necessary to protect themselves, no matter how egregious it may seem to the employees' privacy.
Employee privacy in the workplace is, for all intents and purposes, non-existent. There should be no individual expectation of privacy, nor can an employee protect him or herself from the prying eyes of the corporate employer. An employee should use a private cellular phone during work hours if privacy is desired. "Big Brother" most definitely "is watching", and just because 1984 came and went without anyone noticing Orwell's warning, it should be noted that the famous novel is not just a warning, it is being used as a guide by corporate America.
In the future, there will no doubt be an increase in the court cases that question and decide an individual's right to privacy in the workplace. Technological advances have given employers a direct view of their employees' daily activities. Web surfing that is not work related, e-mailing, and even visits to the rest room are fair game under the watchful eye of the employer. It is best to keep in mind that the equipment used at work does not belong to the employee, and the daily activity may be, can be, and probably is under scrutiny. An employee should be aware that he or she is being watched and monitored, and that at no time during the workday is there to be a reasonable expectation of privacy.
References
Bonsor, Kevin (2005) How Workplace Surveillance Works. How Stuff Works retrieved January 29, 2006 from http://people.howstuffworks.com/...
Clarke, Roger (2001) Person location and person tracking. Information Technology & People, Volume 14, No. 2, 2001, pp 206-231. 1/10/2006 from Emerald Library.
Galkin, William S. Esq. (December 28, 1995). Electronic Privacy Rights, the Workplace. 1/16/06, from `Lectric Law Library http://www.lectlaw.com/...
Miller, Valerie (2005) Rio's use of radio tags on servers causes concern 01/13/05 from Las Vegas Business Press http://www.lvbusinesspress.com/...
Privacy Rights Clearinghouse [no author]. (September 2002). Employee Monitoring: Is There Privacy in the Workplace? 01/15/06 from Privacy Rights web site
http://www.privacyrights.org/...
Rich, Lloyd L. (1995) Right to Privacy in the Workplace in the Information Age 01/13/05
http://www.publaw.com/...
Smyth, Jamie (2002) Visitors to US from 2004 must have microchip IDs in their passports 08/06/02 Irish Times
http://www.ireland.com/...
Volkert, Lora (2005). Workplace Privacy? Laws give employers wide scope to snoop. Dolan Media Newswires, pp. 1-3. 1/11/2006 from Apollo Library.