Employee Monitoring - Essay Example

Introduction Most American citizens are well aware of their constitutional rights, such as to free speech, and indeed have come to expect them in all areas of their lives. What most Americans do not realize, often until it is too late, is that most of those rights do not follow them once they enter the workplace. Court rulings such as in Smyth v. Pillsbury 914 F. Supp. 97 (E.D. Pa. 1996) have given U.S. employers broad powers to surreptitiously monitor and punish employee behavior in the workplace, more so than in Canada, the United Kingdom or most of Western Europe (Wheeler et al. 1). What U.S. employers can do, and what they should do to maintain a productive workplace, may be two different things. The short-term gains of increased security and perceived productivity can lead to long-term losses in employee morale and greater health care costs from stress and injury -- concerns that also have costs associated with them. This paper will examine the issues of employee monitoring, particularly regarding computer and Internet behaviors, to see whether these policies are good for business. Developments in legal thought and workplace application will be tracked from two early and often-cited cases, Shoars v. Epson No. SWC 112749 (Cal. Super. Ct. 1990) and Smyth v. Pillsbury Co., through a recent case that would seemingly demand an employer's duty to monitor in Doe v. XYC Corp NJ. Super., A-2909-04T2. Employee monitoring "is a dependable, capable, and very affordable process of electronically or otherwise recording all employee activities at work and also increasingly outside the workplace" (Kizza & Ssanyu, in Weckert, 2). As workplace computer and Internet use increase, so does monitoring of those activities. Correspondingly, more software is now available and affordable for employers to monitor everything from e-mail use to downloading activity to keystrokes per hour, which the authors say has made the monitoring behaviors more evasive and intrusive. Sales of e-mail monitoring software alone have jumped from $139 million in 2001 to an estimated $662 million this year, according to International Data Corp. (Wakefield, para. 1). Historically, employee monitoring evolved from production line supervisors standing over and watching line workers to ensure they remained on task and tally sheets to record work output. In its early days, Ford Motor Co. would send investigators to inspect employees' homes and finances to determine if they were worthy of the company's profit sharing options (Lewis 21). Employers have long been concerned about employees' non-work-related telephone usage, both in terms of time and long distance costs. Video surveillance in work areas has long been a matter of fact, to protect both employer and employee interests. Drug testing became an issue first for public transportation employees in the 1980s and now many companies require pre-employment screening. Credit, criminal record and other background checks and psychological testing are also common, especially during the interview and hiring stages. Author Frederick S. Lane III, in his book The Naked Employee: How Technology is Compromising Workplace Privacy, explains that businesses are knowingly taking a risk when they implement monitoring policies. They are balancing the cost in time and dollars of surveillance and in lowered morale against the potential returns. "The bet is that the investment in increased surveillance will pay off by reducing employee theft and sabotage, increasing productivity, preventing lawsuits, avoiding violent incidents in the workplace, and preventing terrorist attacks" (11). Early computers were hardly worth worrying about, Lane notes. But the advent of Windows technology and the Internet give plenty of diversions, from solitaire games to shopping. Necessary Evil Employers have legitimate concerns for monitoring employees behavior beyond productivity measures. Security issues range from protecting trade secrets to safeguarding confidential customer data. Excessive use, particularly in downloading media files (which may or may not be copyright protected), can slow down system speed, make nightly backups take longer and lead to potentially costly system breakdowns (Quitt, para. 4). Illegal acts, or violations of company policy, may be brought to light by computer monitoring. Employers can be held vicariously liable for employee actions on the job through the common law principle of respondeat superior, Latin for "let the master answer" (http://dictionary.law.com/ definition2.aspselected=1827). Under this principle, for example, if a pizza delivery driver hits a pedestrian while speeding through a red light, the pizza restaurant can be held liable for the pedestrian's injuries. The relatively recent practice of "blogging," keeping an online journal or weblog, has caused employers a great deal of concern. Like e-mail, blogs can be used to disclose confidential, libelous or unprofessional information -- except blogs are generally available for anyone with an Internet connection to view. Or, they might be harmless and creative ways for employees to blow off steam or indulge in favored hobbies that have nothing to do with the job. Like other computer usage, blogging can eat up time that should be spent working. Microsoft, which encourages employees to use technology, has largely turned a blind eye to a widely read blogger, Mini-Microsoft, who has turned his anonymous web log (at http://minimsft.blogspot.com) into a virtual water cooler where employees discuss and often criticize company policies (Greene & Green 104). Other employers have not been so generous: The term "doocing" refers to firing an employee for keeping a blog about job-related issues, so named for Heather Armstrong, the owner of the web log at http://www.dooce.com, who was fired for her blogging revelations. The 2005 Electronic Monitoring and Surveillance survey by the American Management Association and the ePolicy Institute shows that monitoring behaviors are increasing: 76 percent of businesses in the study monitor web browsing, with 65 percent blocking access to inappropriate sites, a 27% increase since 2001. Half of the businesses store and review computer files, and 55 % store and review e-mail messages. More than one-quarter have fired workers for misusing the Internet (AMA 1) and one-quarter have fired workers for misusing e-mail (3). Worldwide, some 35 percent of 100 million online workers undergo monitoring in some form, according to the Workplace Surveillance Project of the Privacy Foundation (Kizza & Ssanyu, in Weckert, 2). Though used less frequently, technology does exist to allow employers to physically track employees' whereabouts in the field. Radio Frequency Identification (RFID) chips embedded in identification cards and global positioning satellite technology in cellular phones can pinpoint someone's location, even while off duty. The AMA survey found that fewer than 10 percent of employers used GPS encoded technology in either cell phones, company cars or employee ID cards. No statistics for RFID technology were gathered by the survey, but the technology's use in product tracking and retail anti-theft efforts has made it the target of growing concerns (Berthiaume 48A). The widespread use of technology in the workplace in general has led to increased concerns among privacy advocates, labor unions and employees in general over monitoring and surveillance. The media have taken notice, invoking Orwell's "Big Brother" in scores of articles and TV news programs, such as "American Workers Beware: Big Brother is Watching!" (Lewis 20). Privacy is a common law concept and as outlined in a famous paper by Samuel D. Warren, and Louis D. Brandeis in 1890 in the Harvard Law Review represents the right "to be let alone." The scholars noted the increasing intrusion of the gossip mongering press into private lives, notably the portable camera and mechanical listening devices. "Recent inventions and business methods call attention to the next step which must be taken for the protection of the person," they wrote (para. 4). Law would, the authors hoped, keep up with such technological changes. Fueling many worker concerns is the widespread notion that "privacy" is a guaranteed right for all Americans, all the time. Privacy, and the notion that breaching that privacy is wrong, is a deeply ingrained social value (Martin & Freeman 357). However, most Americans fail to realize that the Constitutional protections cover the behavior of the government, not private employers. The Fourth Amendment protection against unreasonable search and seizure simply does not apply to a private workplace. Generally, state courts hold individuals to a high standard when claiming invasion of privacy; individuals must demonstrate they held a "reasonable expectation of privacy" which does not exist on company computers (Herold 7). Workers often do not find out their notions are wrong until they are involved in a situation themselves, such as getting disciplined or even fired for misuse of company computers. Not all employee monitoring is done with Big Brother intentions. Several cases have made it clear to employers that allowing employees to send e-mails that could be viewed as sexist or racist can be seen as fostering a hostile atmosphere, and a violation of civil rights. Indeed, the AMA survey found that concerns over litigation and regulatory action may be behind the increased electronic monitoring (3). A recent ruling by the New Jersey Court of Appeals in Doe v. XYC Corp. found that employers can be held liable for damages for not punishing an employee repeatedly caught for viewing pornography while at work -- once it became known that the employee had not only downloaded child pornography, but had posted nude and semi-nude pictures of his underage stepdaughter. Many factors combine to put a burden on employers in a way not captured by salacious headlines. It may indeed be employers' equivocations that leave them most vulnerable to employees' complaints (Busse 132). Some Important Monitoring Cases Almost as soon as e-mail found its way into the American workplace, conflicts between employers and employees over e-mail privacy began occurring. Shoars v. Epson America Inc. stretches back to 1989, when California-based Epson America implemented an e-mail system in its workplace. Alana Shoars was hired to manage the system and encourage workers to use it. In her work, she ensured employees that their communications were private. However, she found that a supervisor had been intercepting the e-mails and she complained about his actions. She also demanded a separate account that would not be monitored. She was dismissed for insubordination. The courts upheld the dismissal, saying she had no right to expect privacy. Shoars and subsequent defendants have attempted to use the 1986 Electronic Communications Privacy Act (ECPA) 18 U.S.C. 2510-2711, which builds on federal wiretapping statutes (the Omnibus Crime Control and Safe Streets Act of 1968 ) to ban the interception of electronic communications such as e-mail. However, most employers view emails once they have been stored on servers owned by the company, and so are not intercepting them in transit. ECPA also allows for monitoring when employees have given consent, although this has been a contentious area. The AMA survey shows that between 80 and 90 percent of employers say they inform their staffs of various forms of electronic monitoring (1). In Smyth v. Pillsbury Company Inc. 914 F. Supp. 97 (E.D. Pa. 1996), a Pennsylvania federal court ruled in 1997 that the employer can read e-mails even if assurances have been given that they will not be read. In that case, Michael A. Smyth was dismissed for sending an inappropriate and threatening e-mail from his home computer after the court found the Pillsbury Co.'s interest in preventing potentially illegal behavior outweighed privacy concerns (Pine 50). Smyth, like the vast majority of American workers, was an "at-will employee," meaning he had no guarantee of continued employment but worked at the pleasure of his employer. Company executives fired him after reading the e-mail, wherein he threatened sales management staff by saying he would "kill the back-stabbing bastards." Smyth argued that employees were repeatedly told their e-mails would remain confidential and would not be used against them. The court ruled, however, that Smyth enjoyed no expectation of privacy, since Pillsbury owned the system over which the communication was sent. (Boehle 56). In a more recent email case, Fraser v. Nationwide Mut. Ins. Co., 352 F3d 107 (3d Cir. Pa. 2003), an employer's right to read e-mail stored on company servers was upheld. But an employer may be violating ECPA by retrieving messages sent via a personal account, even if it is sent over the company's Internet connection (Raysman & Brown, para 16). Legal rulings have given employers a good deal of freedom to discipline and even terminate employees for misusing electronic mail and the Internet. Doe v. XYC. may be seen as requiring them to take action in such cases. The girl's mother sued the employer, charging that managers knew and had reprimanded the employee on two occasions for using work computers to view pornography. The employer knew the worker was surfing on pornography sites but did not check them thoroughly -- a check that would have revealed that some sites contained child pornography. The judges ruled that when an employer knows of an employee's use of computers to search pornography sites, that employer "has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer." Workplace Implications Implications of electronic monitoring activities go beyond legal liability concerns. Even when employers abide by the spirit of the ECPA and fully inform employees of monitoring policies, they must deal with issues of employees' perceptions and morale. Morale has been studied in a business context for many years. Though morale can be hard to quantify, commonsense dictates that when morale is high, workers enjoy their jobs and productivity is higher. Conversely, where morale is low, resentment sets in and productivity suffers. Bruce (2) defines morale simply as "How an individual feels about his or her work and the organization." In low morale situations, workers will likely only do what is required of them and are less committed to the job, she observes. Kizza and Ssanyu list seven problems that can arise in the workplace when monitoring takes place. The first is a loss of trust between employer and employee that can lead to morale problems. Problems two through seven are simple: Stress. The authors list stressful results of monitoring including psychological stress to Repetitive Strain Injuries from employees who fear their keystroke output or time on task is not sufficient (12-13). This can lead to costly worker's compensation claims and time off work. Highly monitored jobs, such as call center operations, may be seen as not demanding much creativity, which can also cause frustration and low morale. Workers stressed by monitoring may communicate less with their supervisors, since they feel they are already having work output extracted from them without the need for face-to-face reporting. Even security experts whose job it is to encourage companies to prevent loss through computer misuse are recommending their clients strike a balance between control and privacy. Just as employers monitor their employees, employees may return the favor and spy on them. The culture of espionage has broadened with the relative low cost of many surveillance options which can be turned on spouses, children, babysitters or anyone in an employee's social sphere, notes the Institute of Management and Administration in its Security Director's Report (August 2005). The report expresses concern that there are "troubling discrepancies" between why companies say they monitor employees and why employees think they are being monitored, and between what is and is not acceptable. If those discrepancies grow too large, the company risks Pyrrhic victories -- catching one disgruntled employee versus damping long-term productivity for an entire staff. Cialdini et al. listed excessive monitoring as a "malignancy" that can eat away at a company's structure and profits, just as unethical or illegal behavior on the part of management can (as with Enron, etc). "[T]he misconduct is likely to fuel a set of social psychological processes with the potential for ruinous fiscal outcomes that can easily outweigh any short-term gains. [O]rganizations that behave unethically will find themselves heading down a slippery and dangerous fiscal path" (67). Companies must balance the need to reduce productivity losses through personal or improper e-mail and Internet usage with the risks associated with unmotivated and potentially disgruntled employees. As with leniency on occasional personal telephone calls, some businesses are using the same technology used to control and watch Internet activity to allow for free usage times, such as breaks or lunch. For example, at KB Toys, the national toy retailer, employees can use up to 30 minutes a day for personal Web surfing. Inappropriate sites are blocked, but employees have access to others for various personal and recreational viewing (Dunn, para. 16). Best Practices Employers and employees alike are realizing previously unenvisioned efficiencies and productivity levels with modern computer software, high-speed Internet access and the market in information that the computer revolution has brought about. Traditional paradigms of organizational control still exist -- management comes "down from the top" and managers have the duty to ensure that workers are using company time properly. Federal and state courts have recognized this right. Employers also have longstanding responsibilities under Title VII of the Civil Rights Act to protect employees from a hostile work environment. American workers, in particular, are suffering from work-related stress in epidemic proportions, which is manifesting in both physical and mental ailments. Balancing the need to ensure safety, security and profitability with the needs of employees to feel they are productive partners in the organization is as important to productivity as meeting keystroke quotas. Lane, in The Naked Employee, outlines some best practices that companies can follow that will help them meet their statutory responsibilities and generally protect them from liability and tort actions -- and send a clear message to employees that their privacy is valued. Those recommendations can be summed up as follows: 1. Find out what concerns employees have about privacy issues in the workplace. 2. Draft a reasonable privacy policy that deals with personal e-mail, telephone calls, Internet use and any other relevant communication devices. Be clear about what the organization will and will not permit. 3. Make the policy flexible, so it can keep up with new technologies or changes in the working environment. 4. Discuss the proposed policy with employees and get feedback. Be cognizant of their concerns. 5. Adopt the policy as part of the employee handbook. Make sure everyone gets a copy, and post it in prominent locations. 6. If your organization already has a policy, review it for flexibility and make changes as necessary. Ensure that employees understand it, have copies of it, and can see it posted in high-traffic areas. Allow for constructive employee input and feedback on how it is working. 7. Apply sanctions fairly and consistently throughout the organization. Technology need not create further divides between employer and employee. 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