Employee Privacy and Confidentiality - Essay Example

Section/# Employee Privacy and Confidentiality A prescient concern that many privacy rights groups and employees alike have begun to voice is the fact that any and all electronic communication that is carried out via a company computer or company Smartphone is libel to interception and/or analysis by the company who owns the device. As part of nearly every employee confidentiality disclosure form that is required to be signed prior to employment commencing, the employee gives away the rights to personal privacy while using any and all electronic forms of communication that are provided by the employer (whether on or off work hours). Such policies mean that it is becoming increasingly more difficult to define where personal privacy and eavesdropping laws end and the rights of the employer being with respect to monitoring any and all forms of electronic communication that the employee might engage in while employed. Accordingly, the purpose of this essay is to provide a thoughtful commentary on key issues relating to privacy and employer rights with respect to the issues at hand. Furthermore, the analysis will seek to raise some key questions with reference to what the technological development evidenced within the past few years portends for the employment frontier. By engaging in such a form of inquiry, the reader will essentially be made aware of some of the current pitfalls and issues regarding privacy that exist within the current job market and the means through which they can ultimately be avoided. Ultimately, the employee has a certain degree of privacy that they should expect. Firstly, if they are to be surveilled at the workplace, either in terms of video surveillance areas or audio surveillance, they must be made aware of this in advance. Although different states have different laws with regard to who can record what and when, a general and safe rule of thum is to be completely forthcoming with respect to what types of information might be collected, in what situations/circumstances, in what areas, and where.1 By being forthcoming, the employee has an expectation of privacy that can be upheld by the company should there every be a situation in which wrongful eavesdropping or surveillance of their personal information might be alleged. Further, it should be understood that the technological development that has taken place within the past few decades has made a profound and lasting impact on the way that firms surveil and monitor their employees. Prior to this technological revolution, the ways in which an employer could surveil an employee legally were quite limited. Privacy laws dictated that electronic eavesdropping by means of a microphone or the use of a hidden camera was illegal. As such, the level to which an employer could ethically, morally, and legally gain a degree of inference with regards to what activities and thoughts the employee shares within the company, among personal friends, or any other such activities is brought clearly into focus. The true crux of the matter is not the fact that the employer will be able to gain a high degree of inference with regards to the potential unethical or illegal activities in which the employee might be engaging; rather, it has been proven statistically that a high percentage of emails and correspondence that are done at work are of a personal nature. Naturally, such correspondence put a burden on the sender to understand and realize that the privacy of these communications is suspect due to the terms of the confidentiality agreement and terms of electronic communications that they have agreed to; however, there is a small degree of moral burden on the part of the employer as well to actively seek to purposefully disregard such personal conversations as long as they do not represent a breach of contract or any form or manifestation of illegality.2 Yet, the issue with such an approach hinges upon the fact that the employer will not be painstakingly reading each and every correspondence generated by the employee. Unfortunately, privacy laws or ethical considerations cannot guarantee that this will not be the case. Although this essay has spoken primarily about the privacy concerns that employees might experience as a function of having their employer read their correspondence, it would be remiss of this author to discuss this situation fully without offering advice for a simple way in which the employee can work to avert many of the negative repercussions of over-aggressive privacy policy.3 Once the employee signs on the dotted line and accepts the fact that the employer can monitor their activity and communication via the devices that are utilized within the workplace setting, virtually no privacy whatsoever exists within these mediums. As such, it is the strong recommendation of this author that the employee be ever-mindful of the lack of rights they possess while utilizing the employer’s equipment and wait to conduct any and all correspondence and communication they would not want read by another employee until after work hours and via a different means of transmission.4 As the NSA has recently proven, the right to privacy is a concept that has been experiencing a reduction in status over the past several years. As such, it is not out of the question to envision a situation in which privacy and the right to it will be all but a distant figment of the imagination. Accordingly, it will be necessary for employees of the future to recognize the inherent risks that exist to their own privacy and seek to distance their work life from their personal life even further. In years past, the greatest worry of personal and work related issues was with regard to the difference between a padded expense report and an honest expense report. However, with the era of work provided tablets, smart phones, cars enabled with GPS tracking devices, and a litany of other things, the difficulty of accomplishing a separation between work and personal privacy becomes that much more difficult. Many employees have found themselves shocked to realize that if they log into their person email accounts at work then their employers can legitimately claim legal rights to the data that is held within these accounts. This is also true with regard to any electronic devices that might be connected to a computer or any physical material that is brought into the workplace. As such, being mindful of this reality before it creates any difficulty is a far better approach to have as compared to being shocked by these revelations after actions have been initiated against the employee. Furthermore, the laws that define the rights of the employer with regards to eavesdropping and/or surveilling the activities of their employees do not merely relate to sending or receiving messages via the work channels of communication5. Rather, some states have defined employment law so broadly that it can be determined to mean any form of communication that takes place while using company equipment, or even bandwidth. For instance, if an employee were to compose a message on their own computer while using the company’s network, the message and contents could be lawfully interpreted to be the property of and under the purview of the company/firm in question. Likewise, an employee using their work computer in order to access a personal email account could conceivably have their password and logon information stored as well as individual messages that are read or sent while at the workstation recorded. Again, although this seems far out of the bounds of normal work-level electronic communication surveillance, it is neither illegal nor improbably judging by prior precedence that has been affected with regards to employee privacy and employment law/confidentiality.6 The way that certain states have defined confidentiality has done a disservice to the expectation and application of key components of privacy.7 In this sense, the needs of the company have been viewed as tantamount to the prior understanding of a reasonable expectation of privacy that the employee would otherwise necessarily expect. Finally, the expectation of privacy, and the determination of what defines it, is something that will always favor the moneyed interest over the individual. Sadly, the fact of the matter is that the legal system, and the droves of companies that hire full time legal counsel can attest to the fact that the deck is stacked against the individual that seeks to take a case to court in terms of the violation of their own privacy. The reason behind this is that teams of qualified experts are generally tasked with carefully crafting the wording of the employee handbook and/or the privacy policy that any particular workplace has. Even worse, most employees have never taken the time to sit down and carefully understand the many nuances and shades of meaning that these contracts have upon their work and the manner through which they will conduct themselves. As colleges and universities have taught interviewing skills for decades, it would be the further recommendation of this author that they should also teach courses in how the future/prospective employee should be mindful of the issues that have been referenced within this brief research paper. By doing so, the individual would be more prepared for the types of situations and the potential pitfalls that could easily take place in the workplace. Such liberal interpretations of the law and the rights of the employer to monitor and surveil the actions of the employee should give pause with regards the ways in which they utilize electronic means of communication.8 Furthermore, this brief analysis has thus far considered the overall effect that computer usage has on the way in which a firm is able to monitor and surveil its employee’s communication; however, with the advent of smartphones and tablets, this is merely one of many ways in which such an affect can be accomplished. Moreover, as more and more firms are giving employees smartphones and tablets as a way to keep in constant contact with the office even while traveling, the temptation to use these supposed “freebies” as a means of personal communication is strong; however, the very same rules that apply to the use of the company laptop or desktop computer that have thus far been referenced equally apply to the use of tablets, smartphones, or any other type of electronic form of communication device.9 Whereas changes to the current dynamic would be something that most legal advocates could agree on, the dynamic shifts in technology that have taken place over the past several years have created a vacuum in which moneyed interests have exploited and minimized the overall level of “expectation for privacy” that the stakeholder can expect to have on any given job. As such, the outlook for the future is somewhat dismal with respect to the employee perspective. However, with this being understood, a renewed level of emphasis should be placed on privacy and privacy rights so that the market can become more informed with respect to the issues at hand. This paper has sought to engage the reader with the many different forms of electronic surveillance that a firm/organization can legally employ as a meant to monitor the behavior of their employees. As has been noted, the level to which the employer has rights over the communication and electronic transmission of its employees far outweighs the rights to privacy that the employee might experience in any given situation. As such, from the discussions that have brought to the view of the reader regarding the supreme lack of privacy that exists with relation to any form of communication that the employee might make whilst using any network, or physical hardware of the firm/organization, it is incumbent upon the employee to be ever mindful of their own personal privacy. Moreover, from the evidence that has been presented with respect to privacy in the workplace, it is painfully clear that the direction in which interpretation of privacy law and its application is concerned strongly and resoundingly favors the employer. Works Cited Bagdanskis, T., & Sartatavičius, P. (2012). WORKPLACE PRIVACY: DIFFERENT VIEWS AND ARISING ISSUES. Jurisprudencija,19(2), 697-713. Cappel, J. (1995). A Study of Individuals Ethical Beliefs and Perceptions of Electronic Mail Privacy. Journal Of Business Ethics,14(10), 819-827. Chigona, W. W., Robertson, B. B., & Mimbi, L. L. (2012). Synchronised smart phones: The collision of personal privacy and organisational data security. South African Journal Of Business Management, 43(2), 31-40. Dammeier, D. C. (2012). Fading Privacy Rights of Public Employees. Harvard Law & Policy Review, 6(2), 297-312. Evans, L. (2007). Monitoring Technology in the American Workplace: Would Adopting English Privacy Standards Better Balance Employee Privacy and Productivity?. California Law Review, 95(4), 1115-1149. Determann, L., & Sprague, R. (2011). INTRUSIVE MONITORING: EMPLOYEE PRIVACY EXPECTATIONS ARE REASONABLE IN EUROPE, DESTROYED IN THE UNITED STATES. Berkeley Technology Law Journal, 26(2), 979-1036. Mello, J. A. (2012). SOCIAL MEDIA, EMPLOYEE PRIVACY AND CONCERTED ACTIVITY: BRAVE NEW WORLD OR BIG BROTHER?.Labor Law Journal, 63(3), 165-173. Moore, A. (2000). EMPLOYEE MONITORING AND COMPUTER TECHNOLOGY: EVALUATIVE SURVEILLANCE V. PRIVACY.Business Ethics Quarterly, 10(3), 697-709. Smith, W. P., & Tabak, F. (2009). Monitoring employee E-mails: Is there any room for privacy?. The Academy Of Management Perspectives, 23(4), 33-48. doi:10.5465/AMP.2009.45590139 Read More