Privacy In The Workplace

Email, Instant Messaging, Global Positioning Systems, telephone systems, and video cameras have given employers new ways to monitor the conduct and performance of their employees. These technological advances have been instrumental in setting a significant growth trend in the United States, concerning employee monitoring. Employers now use monitoring devices to keep track of their employees' actions in hopes of increasing their productivity while decreasing their liability. In doing so, many employees feel this much monitoring is an invasion of their personal rights and violates their "privacy expectation". Consequently, this dilemma has created a necessity for finding a method to balance an employers' legitimate interest in monitoring employees conduct and performance with an employees' right to privacy. This can be done by establishing a monitoring policy which enforces both employer and employee privacy rights. In fact, this issue is now forcing the government to take a more pro-active approach in updating current privacy legislation.

Expansion of Employee Monitoring

Employee monitoring is the act of watching and monitoring employee's actions during working hours using employer equipment and property. (Mujtaba, B. G. 2003). Electronic monitoring in the American workplace has seen dramatic growth in recent years. Prior to 1980, electronic monitoring was virtually unknown. When the Congressional Office of Technology Assessment studied its use in 1987, only 7% of employees were affected. But only 6 years later, a MacWorld survey found the electronic monitoring had nearly tripled to 20% of employees. (Piller, C. 1993). In 2001, the American Management Association reported that the percentage of companies monitoring had risen to 78.4%. Currently, 92% of employers are conducting workplace monitoring, which was reported by the Center for Business Ethics at Bentley College. According to a study conducted by ComStore Networks, 59% of on-line sales in 2002 were conducted from shopper's workplace. Peak Internet access from work occurred between 10 A.M. and Noon. This means employees are conducting non-work related business at work. One company in Seattle, N3H3, which tracks lost productivity, estimates that conducting personal business and surfing at work cost 11 million dollars annually.

An Employer's Interest in Monitoring

Employers use numerous techniques to monitor their employees. A survey reported by NFO Worldwide stated 85.6% of employees use office email for personal reasons. Business Week reported 64% of employees have received politically incorrect or offensive emails. Many employers have legitimate reasons to monitoring e-mail usage, such as: Maintaining the company's professional reputation and image; Maintaining employee productivity; Preventing sexual or illegal workplace harassment; Preventing possible defamation liability; Preventing employee disclosure of trade secrets and other confidential information; and Avoiding copyright and other intellectual property infringement from employee illegally downloading software. (Duke University, 2005) These reasons are understandable, but so are the reasons to protect individual privacy. There are many different types of monitoring programs available to help companies meet their objectives. Some of these programs include Packet-sniffing software, which can intercept, analyze, and archive all communication on a network, including employee email, chat sessions, file sharing, and internet browsing. Employers also have the tools to monitor key stokes. Key Stroke jogger captures every key pressed and used within an hour. Another monitoring technique is video surveillance. Under Federal Law, video cameras are acceptable as long as its primary focus is on a publicly-accessible area. However, video cameras can not be installed where employees have a legitimate expectation of privacy, such as a changing room or inside a bathroom stall. There is also a monitoring system to track employees and their physical whereabouts on company grounds. The employer has vested interest in monitoring in order to address security risk, sexual harassment, and to ensure the performance of employees. The Orlando Sentinel stated the cost for employees surfing the Internet, during work hours using company equipment and time, in large industries could be as much as one billion dollars each year. There are numerous programs and monitoring techniques afforded to employers, but if not implemented correctly through monitoring policies, these programs can be unlawful and have a negative effect by diminish employee moral, increase work stress, and thus decreasing employee productivity.

The Importance of Monitoring Polices

Imagine being an employee at a company where you are unaware your activities in the workplace were being monitored. Once this fact is discovered, you would probably feel your privacy had been invaded. However, had you been told from beginning of your employment the company has a monitoring policy you would have accepted the policy and not felt invaded. It is important for employees to understand their governing rights concerning privacy to ensure their privacy rights are not being invaded. An important law employers, concerning email monitoring is the Federal Electronic Communication Privacy Act of 1986 (ECPA). This act prohibits the interception of electronic communications, including e-mail. However, three exceptions to the ECPA may allow the interception of employee email. First, an employer can monitor email if the employee has consented. If the employer has a monitoring policy stating their email or on-line activity is being monitored, this implies consent. The act also states the provider of the electronic communication services is free to monitor communication when the monitoring is a necessary incident of the rendition of services or the protection of the rights or property of the provider. Lastly, the law states in order for monitoring to be legal it must be for a legitimate business purpose. An important note concerning this law is the fact employers are not permitted to monitor personal emails. If the employer wishes to monitor all email traffic, they need to advise, preferably through a monitoring policy, the employees of this fact. This would reserve the right to monitor all email messages. By informing employees, the employers protect themselves by arguing employees do not have a "reasonable expectation" of privacy in their email messages and thus avoid having to rely on the court's own notion of what privacy expectation is reasonable. (Brown. D, 1997) It is important for a company to realize employee and employer trust is crucial to maintaining a high level of productivity.