Employee Privacy Rights in the Workplace - Literature review Example

Employee Privacy Rights in the Workplace Many employees feel that being surveillance by the telephone, e-mail, cameras and use of the internet is invading their privacy in the workplace. Technology is methodically and increasingly stripping away the privacy of citizens which has led many to ask if corporate interests outweigh the autonomy of employees. Employers argue that because they own the internet connection and computer system, they have not only the right to scrutinize employee emails but an obligation to do so as well in an effort to increase productivity and to protect the company’s secrets. Americans cherish their privacy and generally detest government intrusion into their private matters such as tapping their telephone conversations. However, many have come to accept that their employer has the right to essentially do the same thing by monitoring emails. Is wrong always wrong or do employers have a widely agreed upon caveat to intrude on the privacy of American citizens? Some believe that because the Constitution forbids illegal searches which are the precedent for disallowing the wiretapping of citizens, this should apply to businesses as well. Although there are many examples of privacy rights violations in the workplace, there are no inconsistencies between success in business and protecting employees’ civil rights. Despite the most current perception, businesses are not self-governing states whose laws are changeable at the impulse of the current boss. Employers are increasingly invading their employees’ privacy by utilizing video surveillance to monitor their every action while at work. According to numerous Federal court decisions, the Electronic Communications Privacy Act of 1986 does not prohibit an employer from silent video surveillance. However, video surveillance that encompasses the ability to record employee conversations would breach the Act. “A silent video surveillance is subject to the Fourth Amendment’s protection against unreasonable searches, but at least one court has held that the Fourth Amendment is only implicated if an employee has a reasonable expectation of privacy in the area being watched” (Kan, 1996). If employees have no reasonable expectation of privacy in an area under observation – such as in a locker area that can be viewed by anyone who enters – the Fourth Amendment is not violated, regardless of the nature of the search. Prior to the advent of the internet, many employers allowed their staff to use company telephones for personal calls because it was at times essential and by allowing limited use kept their employees happy. The ‘phone time’ was transparent as usually it was done out in the open and abuses were more obvious. The concern then and now is the theft of time and loss of productivity. Today, the loss of company time is less transparent but employers still must endeavor to constantly increase employee efficiency so that the business remains profitable. Employers have been forced because of new technologies to use new technologies as a tool to accomplish the same goals. Beyond loss of time and fear of harassment lawsuits, employers have other many justifiable motives for monitoring an employees’ use of e-mail such as, “maintaining the company’s professional reputation and image, preventing ‘cyber-stalking,’ preventing possible defamation liability, preventing employee disclosure of trade secrets and avoiding copyright and other intellectual property infringement from employees illegally downloading software, etc.” (Duke, 2001). Computer networks are especially susceptible to employer scrutiny. According to a Privacy Foundation study (Privacy Foundation, 2001), 14 million U.S. employees are subject to this type of surveillance on a constant basis. Employers use specially designed software for this purpose. They are able to scrutinize employee e-mail by randomly reading communications or by selecting key ‘damaging’ words or phrases in order to flag e-mail. The software evaluates a company’s e-mail messages by selected term of phrase and makes a determination regarding whether a message is genuine and non-threatening corporate business. These programs are becoming ever more sophisticated using algorithms to evaluate communications patterns and relay this information to employers. Many employers increasingly rely on software to monitor e-mail messages and are always just a click or two away from viewing every e-mail message that employees send or receive. Employers give a variety of justifications for spying on their employees communications including the protection of trade secrets, the prevention of internal problems or excess e-mails clogging networks by using too much bandwidth. Another popular reason given is to monitor personal e-mails so as to stop employees from using company time for personal communications. Checking for quality of work would violate few people’s idea of crossing the privacy boundary but that is seldom a reason given for such monitoring. According to the American Management Study (2001), close to “two-thirds of all companies discipline employees for abuse of e-mail or Internet connections and twenty-seven percent dismiss employees for those reasons.” Dow Chemical Company terminated fifty employees in 2000 and “threatened two hundred others with suspension after they found ‘offensive’ material in their e-mail. The company opened the personal e-mail of more than 7,000 employees” (“Dow Chemical”, 2003). In 1999, the New York Times terminated the employment of twenty-three employees for sending ‘obscene’ communications. Employers have increased the level of surveillance on their employees because of the worries concerning lawsuits that could be brought against the company. The rise in suits won due to harassment of women and minorities in the workplace have caused businesses to take a proactive stance in monitoring the actions of employees. Courts have generally concluded that even if employers had no knowledge of harassment, they are culpable because the company must have contributed in that the workplace ‘atmosphere’ degenerated into one that would allow such behavior. Therefore, many companies have been sued for fantastic amounts which have caused others to take notice and respond accordingly by keeping an electronic eye on its employees. Of course, there are some employees who would at times abuse any amount of autonomy afforded to them. Electronic monitoring is considered essential because the current technology demands it. For example, in the past, if an employer walked by an employee’s desk and observed them reading the newspaper during business hours, they knew that the employee was not being productive. Today, employees can play computer games in a covert manner or quickly switch a window from one not related to business back to one that does long before the boss notices. While it is true that Americans work longer hours per week that they used to, productivity is not increasing at a similar rate. Workers are just at the job for more hours. “People spend more of this extra time at ‘work’ writing personal email, checking their stock portfolio and chatting with friends by phone or ICQ so it is not unreasonable for companies to try to find ways to keep new technologies like computers, the Internet and email focused on the tasks they hire people to do” (Rehmke, 2001). The degree of privacy rights an employee can expect is determined by where they work in the private or sector. Constitutional rights apply to government works but not to employees of privately owned businesses. The Constitution, specifically the language of the Fourth Amendment, provides practically no guidance in the legalities regarding the monitoring of emails in a private business. However, eight states have privacy provisions regarding employees written into their constitutions which offer broader protections than the U.S. Constitution does. Therefore, “both employers and employees must look to current federal or state statutes, or to the common law, in order to gain any clarity concerning the legal issues surrounding the monitoring of employee e-mail” (Duke, 2001). As opposed to the U.S., businesses in most other industrialized nations are required by law to recognize employee rights and, not surprisingly, those countries’ businesses thrive. The founding fathers, by adopting the Bill of Rights, sought to limit governmental intrusion in people’s lives. In that uniquely American tradition, today’s citizens remain averse to privacy rights infringement whether by government or business (Spielman & Winfeld, 1995). Is wrong always wrong or do employers have a widely agreed upon caveat to intrude on the privacy of American citizens? The methods that employers use to implement policies that increasingly encroach on privacy rights provoke important civil liberties questions. How ironic that the United States, with its historically founded regard for individual rights has yet to extended similar Bill of Rights securities to the American worker. References American Management Association. (April 18, 2001). “Annual Survey on Workplace Monitoring and Surveillance 2001.” Retrieved September 1, 2007 from “Dow Chemical Fires Employees Over Inappropriate E-mails.” (July 27, 2000). ABC News. Retrieved September 1, 2007 from http://www.privacyinternational.org/survey/phr2003/threats.htm Duke L. “Monitoring Employee E-Mail: Efficient Workplaces vs. Employee Privacy.” (2001). Retrieved September 1, 2007 Kan, D. (1996). Thompson v. Johnson County Community College. (930 F. Supp. 501). Retrieved September 1, 2007 from http://www.privacyinternational.org/survey/phr2003/threats.htm#Workplace%20surveillance Privacy Foundation. (July 9, 2001). “The Extent of Systematic Monitoring of Employee E-mail and Internet Use.” Retrieved September 1, 2007 from < http://www.privacyinternational.org/survey/phr2003/threats.htm> Rehmke, Greg. “Employee Autonomy and Privacy in the Workplace.” Washington D.C.: National Center for Policy Analysis. (2001). Retrieved September 1, 2007 Privacy Foundation. (July 9, 2001). “The Extent of Systematic Monitoring of Employee E-mail and Internet Use.” Retrieved September 1, 2007 from < http://www.privacyinternational.org/survey/phr2003/threats.htm> Spielman, S. & Winfeld, L. (April 1995). Making Sexual Orientation Part of Diversity. Training & Development. pp. 50-51. Read More