Employee Privacy Rights in the Workplace - Coursework Example

Employee Privacy Rights in the Workplace Employers rightfully expect their workers will not report to work while under the influence of drugs or alcohol. They also have every right to set performance goals and to require those goals to be met, an honest day’s work for a day’s pay. If the employee does not meet these expectations, the employer has justification to use disciplinary measures or to terminate employment. 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. However, besides such controversial actions as closely monitoring employees’ every move at work, a growing number are also enacting policies that cross the line from scrutinizing time at work to controlling personal, unpaid, private time. During a casual conversation with his boss, an employee at the Best Lock Corporation in Indiana admitted that he had a couple of drinks in a bar several years earlier. He was fired immediately because company policy dictated that employees were prohibited from drinking alcohol at any time. Although she didn’t smoke at work, an employee at the Ford Meter Box Co. in Wabash, Indiana was taken from her station and ushered from the plant by company security officials. The employee was a smoker who had not smoked while at work, but company policy barred employees from smoking at any time (Sipress, 1991). A bus driver in Michigan could not run in place for three minutes during a company mandated physical exam. The employee, who weighed over 350 pounds, was fired after 26 years of employment (Schloerb, 1991, p. 13.). While people generally agree that employers should hold a certain amount of power over how employees act during working hours, an ever increasing number of employers are expanding their authority over workers to include employees’ behavior away from the job. Many employers will not consider applicants whose private lives they consider undesirable and a few have fired existing employees who have refused to alter private activities to adhere to amendments in company policy. Smokers and the overweight are most commonly victimized by this kind of workplace discrimination. According to a 1988 survey taken by the Administrative Management Society, the policy of about 6,000 employers (six percent of all U.S. companies) disallows smoking whether on the job or off. This percentage has certainly grown since that time. The National Association for Advancement of Fat Acceptance estimates that the overweight are discriminated against more-so than smokers although similar studies cannot be conducted as companies do not have this policy in writing (Stascia, 1991). Businesses have been known to refuse employment to applicants for many reasons that do not pertain to the operation of the business including a person’s religious preference, hobbies and sexual orientation. If they were not aware of an employee’s ‘undesirable’ characteristic before hiring them, they are sure to find out by reading their email and tapping telephone conversations. 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). According to a 1990 National Consumers League poll, “81 percent of Americans believe that an employer has no right to refuse to hire an overweight person. 76 percent believe employers have no right to refuse to hire a smoker. 73 percent believe employers have no right to require an employee or applicant to change their diet” (Schloerb, 1991, p. 4). Employers argue that outside activities affect an employee’s health which hits their bottom line in terms of increased health care costs and loss of productivity by excess time off work. While such associations between health and loss to business may exist, available studies do not support this contention. Smoking is the premier example businesses use to highlight their reasoning, but according to the Bureau of National Affairs, “95 percent of companies banning smoking reported no financial savings and the U.S. Chamber of Commerce has found no connection between smoking and absenteeism.” (Bureau of National Affairs, 1987). The methods that employers use to implement policies that increasingly encroach on privacy rights provoke important civil liberties questions. As the intrusion into employee’s personal lives escalates, employers will increasingly require random drug/alcohol testing and will justify the need for private detectives to follow people away from the job. A Gallup poll determined that 88 percent of the American public believes that an employer should not consider a person’s sexual orientation as a condition of employment (Johnson, 2003). The Civil Rights Act of 1964 bans discrimination in the workplace based on race, color, religion, national origin, and sex but there exists no federal law that disallows bias regarding sexual orientation in the private sector. Fourteen states have passed laws that disallow discrimination of this sector in hiring practices of all businesses. It is legal for employers to fire an employee because of their actual or perceived sexual orientation in 37 states (Norris & Randon, 1993). Forty percent of gay and lesbian adults have reported instances of harassment at work. Businesses are not required and seldom do ensure a working environment that is free of harassment based on an employee’s sexual orientation, although if they simply followed their own philosophy of creating policies that increase production, they would. “Gay and lesbian individuals who work in an environment where they fear being ‘discovered’ and distrust their coworkers are likely to be less productive and are not likely to experience great job satisfaction” (Spielman & Winfeld, 1995). Employers are increasingly invading their employees’ privacy while away from work and are 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. 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. 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. 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 May 5, 2006 from Bureau of National Affairs. (1987). Where There’s Smoke: Problems, Policies Concerning Smoking in the Workplace, (2nd Ed.). “Dow Chemical Fires Employees Over Inappropriate E-mails.” (July 27, 2000). ABC News. Retrieved May 5, 2006 from Jeff Johnson, Jeff. (May 19, 2003). “Homosexual Activists Claim ‘Anti-Discrimination’ Gains.” CNS News Congressional Bureau Chief. Kan, D. (1996). Thompson v. Johnson County Community College. (930 F. Supp. 501). Retrieved May 5, 2006 from Norris, M.P. & Randon, M.A. (1993). “Sexual Orientation and the Workplace: Recent Developments in Discrimination and Harassment Law.” Employee Relations Law Journal. Vol. 19, N. 2, pp. 233-46. Privacy Foundation. (July 9, 2001). “The Extent of Systematic Monitoring of Employee E-mail and Internet Use.” Retrieved May 5, 2006 from < http://www.privacyinternational.org/survey/phr2003/threats.htm> Schloerb, John. (1991). “Employment Discrimination Based on Employee Lifestyles.” NWI Document Bank #P13. Sipress, A. (March 31, 1991). “Private Lives Becoming Employers’ Business.” Philadelphia Enquirer. Spielman, S. & Winfeld, L. (April 1995). Making Sexual Orientation Part of Diversity. Training & Development. pp. 50-51. Stascia, A. (February 18, 1991). “New Look at Wellness Plans: Well-Designed Programs Trim Fat.” Health Care Tab, Bus. Ins. Read More