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Workplace Privacy: Trends & Developments

It’s been estimated that in the United States a staggering 20 million workers are electronically monitored on the job. Employee surveillance includes anything from keystroke counting; telephone service observation (including call duration; time between, and number of calls); telephone call accounting; “peeking” on workers’ computer screens and email; and the use of “active” badges that track an employee’s movements and location.

According to Michael Levy:

“As a private employee there are minimal constitutional rights to privacy. The principle of State action in the fourteenth amendment gives limited constitutional privacy rights to those in the private sector. Even for public employees and those states that have explicit privacy provisions in their constitutions the difficulty in claiming an invasion of privacy revolves around the test of a “reasonable expectation of privacy” in the workplace.”

This article takes a look at how some trends and statistics in employee monitoring and workplace privacy.

Trends in Employee Monitoring

Numerous studies and reports indicate that monitoring employee behavior – both in and out of the workplace – has undergone a dramatic increase in recent years. This includes an increase of scope and type of surveillance. Indeed, personal behavior is no longer out-of-bounds, as companies have been known to enforce rules limiting coworkers’ dating, as well as smoking and drug use regulations.

Employers have been combining technology with policy to manage productivity and minimize litigation, security and other risks. In order to strengthen compliance with rules and policies, over a quarter of employers have fired workers for misusing email and nearly a third of employers have fired employees for misusing the internet, according to the American Management Association’s Electronic Monitoring & Surveillance survey results. This study found that over half of employers polled monitored all employees’ internet usage, while a quarter of them admitted to storing and reviewing all employees’ computer files. It’s important to note that the AMA’s study included both private and public sector employees.

Blind Spots

These trends have been the focus of employees and civil liberties advocates. If one were to disregard the ethical issues of employee surveillance, errors in monitoring practices would still have significant repercussions on workers. For instance, information gathered from surveillance practices may be used to incorrectly inform decisions that may impact a worker’s career options and advancement.

However, employees’ invasion of privacy claims has garnered little more success than those brought under the ECPA or state wiretapping laws. Most courts have declined to find an employer’s monitoring of employee emails or computer usage an infringement of an individual’s right to privacy in the workplace. Courts typically find that employees have no reasonable expectation of privacy for communications voluntarily transmitted or saved on an employer’s network. Case law shows that even if there were a reasonable expectation of privacy, the intrusion upon seclusion is not highly offensive.

Legislative Attempts

The Privacy for Consumers and Workers Act was been introduced in Congress in 1993, but never passed. The Act provided that electronic monitoring of employees could only occur if the employer complied with specific notice requirements. The only exception to this was “If an employer had a reasonable suspicion that any employee [was] engaged in conduct which violated criminal or civil law or constituted willful gross misconduct,” and if such misconduct adversely affected “the employer’s interests or the interests of other employees.”

In 2000, the Notice of Electronic Monitoring Act was proposed. It required companies to notify workers if their email messages, Internet usage, or phone usage was being monitored by the company. Notice required by the Act would include the type of monitoring taking place, the means, the type of information that would be gathered, including non-work related information, the frequency of the monitoring and how the information would be used. Like the Privacy for Consumers and Workers Act, this bill also was not passed.

Despite this, there are many privacy advocates who argue that a uniform federal law is still a good idea. The working model should be one based on minimum intrusiveness. Companies would then be required to justify each encroachment on privacy with a valid business purpose. Remedies would be made available to employees, should they find themselves working for a company that violates their basic privacy rights.

Summary

This article takes a look at how some trends and statistics in employee monitoring and workplace privacy. It also discusses two legislative attempts at employee protection – the Privacy for Consumers and Workers bill (1993) and the Notice of Electronic Monitoring bill (2000).

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam,  a privacy professional should be comfortable with topics related to this post, including:

  • Workplace privacy concepts – HR management (IV.A.a.i.)
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