Work Place Monitoring: How Much Is Too Much?

To Snoop or Not to Snoop?

What limits are there to employers' intrusions into, and/or control over, employees behaviors? To what extent is monitoring an employee acceptable? Interestingly, there are plenty of studies and surveys that indicate that this business practice is definitely on the rise. An illustration of this growth can be seen in a feature article by U.S. News and World Reports, (April 2001) which includes statistics on the growth of companies that monitor their employees from 1997 to 2001.

Percentage of companies that monitor employees...1997 2001

Total active monitoring* 35.3 pct. 77.7 pct.

Monitoring Internet connections** 54.162.8

Storage and review of E-mail messages 14.946.5

Storage and review of computer files 13.736.1

Recording/reviewing phone conversations 10.411.9

Storage and review of voice-mail messages 5.311.8

*Excluding telephone logs, logging on/off computer, and normal videosurveillance for security purposes. **2000 figure.

Employee privacy is one of the most controversial areas concerning personnel in the public sector. Claims of privacy abuse are measured against an employer's prerogatives in establishing workplace standards and ensuring the efficiency of administration.

Monitoring of employees in the workplace can create conflicts between employer and employee. The problems increase as technological advances change the nature of work, communication, and supervisory functions in the workplace. This conflict reconsiders the basic questions as to what is private, what is proprietary, what legal rights an employee possesses, and what are an employee's obligations and responsibilities within the sphere of employment.

To most, privacy is seen as need for "personal space", which is directly tied to the Fourth Amendment, which holds that, "It is the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures."

Privacy in the workplace has also been asserted on the basis of First Amendment, which states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The exchange of speech between persons should be allowed without redress as long as that speech does not, in some way, threaten the employer or the business. Therefore, the monitoring by the employer of employee conversations in lounges during breaks would definitely be regarded as a monitoring of behaviors outside the employer's sphere of interest, which is not only illegal, but also unethical.

The heightened expectation of privacy attached to oral conversations is recognized in legislation like the Federal Wiretap Act, which prohibits both private and public employers from intercepting and recording the "wire communications" of employees. It is the conversation that is protected.

For example, employers may use cameras to observe employees and to provide security, but providing those cameras with audio capability could violate the Wiretap Act. This is consistent with employees who tolerate surveillance cameras within their work environment for security reasons, but draw the line on any attempt to record their conversations.

This issue of privacy of conversation is commonly raised when employers terminate employees for violation of organizational policies or rules in their use of Internet or e-mail networks while on company time. Users (employees) of these networks tend to view them as mediums in which they can freely communicate without much regard for the potential consequences involved. It may include "cyber-surfing" to web sites that are not related to work duties, downloading information that is non-work related into your employer's computer equipment and database systems, and utilizing e-mail for personal use.

Whatever the semantic distinction between private and public, these few examples represent the issue of permissible or non-permissible intrusion by the employer into employee activity, which the employee regards as none of the employer's business (or private).

A proprietary distinction that's used in The Electronic Communications Privacy Act (ECPA), which provides protection of privacy interests of employees from employer surveillance, but allows for surveillance to be undertaken under the "business extension" exception leaves room for much ambiguity. The ECPA Act also excludes an expectation of privacy on the phones or other electronic devices provided for and used in the business.

Technological Surveillance

A wide variety of new technological devices are available to employers to

monitor employee activity. These devices include the accounting and monitoring

of phone calls, oversight of the efficiency and accuracy of computer operations,

computerized surveillance of vehicle usage, tracking of employee location,

auditing of employees' computer files, tapping of e-mail transfers, and

observation of the workplace areas by video cameras. The legality of these

surveillance practices should be assessed in terms of the individual legitimacy of

concerns that prompt it.

The growing use of e-mail in business has raised the issue of

employer interception and review of e-mail files. The magnitude of this problem

is apparent as hundreds of cases of e-mail intrusions and e-mail abuse by

employees are reported.

In the public and private sector, theft of goods by employees may be a

substantial problem. Surveillance may operate both as enforcement

mechanism and deterrence against theft or other unauthorized or illegal

activity.