Surveillance Electronic Of Employees 1
Electronic Surveillance Of Employees By Priya Prasad Law, Ethics, and Corporate Governance LEG 500 Professor Anne Dewey-Balzhiser
Electronic Surveillance Of Employees 2 Executive Summary
This paper will explore where an employee can expect reasonable amount of privacy in a workplace environment based on the review of a video in which an employer listens to the conversation his employee has with a customer. An emerging increase in the use of technology in the workplace has created new concerns for employers and employees that is currently unsettled. This paper provides an overview on a highly debated area of a person's right to privacy within the workplace and an employer's right monitor employee practices to increase the productivity and efficiency of its business. The paper will also discuss the difference in the expectations of an employee's privacy in a workplace environment that is open or closed, to what extent should an employer engage in electronic surveillance, and a small explanation of to what extent the inclusion of innocent, unaware third-parties in such surveillance is legal.
Electronic Surveillance Of Employees 3 Explain where an employee can reasonably expect to have privacy in the workplace. Generally an employee can reasonably expect to have privacy in a bathroom or locker rooms, places consider physically invasive. However, there have been cases where courts have sided with employers for having cameras in bathroom and locker rooms also, excluding specifically within bathroom stalls. This could be challenged by tort law under the premise of intrusion and if it would seem offensive to a reasonable person. Beyond those two areas most employees have little rights to privacy within the workplace. New technology has made it possible for employers to monitor many aspects of their employees' jobs, such as telephones, computers, voicemails, and internet monitoring. Video monitoring is commonplace in many work environments to maintain security, monitor employees, and to deter theft. As stated in an article by David Amar and Brownstein (n.d.,): Because employers compensate employees to perform their jobs, courts traditionally have granted employers a wide latitude to monitor their employees' work performance and productivity provided that such monitoring does not violate an employee's reasonable expectation of privacy. Courts usually act deferentially even when employers engage in electronic surveillance, such as by monitoring phone lines, e-mail accounts and Internet access, when the employer has disclosed its monitoring policy to its employees, thereby diminishing any reasonable expectation of privacy in those areas. (Para 3). An employee should expect to be monitored in some way or shape and it is in the employer's best interest to ensure that the employee is aware of such monitoring from the day they are hired.
Electronic Surveillance Of Employees 4 In the office workplace there are typically two types of workspaces, an open area, in which there are several desks and where conversations can be overhead, or an enclosed office, in which--when the door is closed--conversations cannot be heard and where one would expect virtually total privacy. Explain whether it makes a difference if an employee is in an open area or in an enclosed office. It makes no difference if an employees is in an open area or with in a closed door office. The Electronic Communication Privacy Act of 1986 (EPCA) is a statue that offers little privacy protection in communications to employees. However, there are many loopholes which can facilitate employer monitoring of employees. Employers are permitted to monitor networks for business purposes and employers can monitor based on consent by notifying the employee that the can be monitored. As stated in article by Chiochetti (2001): Simply put, "the extent of employees' privacy rights in the workplace depends on whether they work in the public sector or private sector. Because constitutional rights operate primarily to protect citizens from the government 'state action' is required before a citizen can invoke a constitutional right." Therefore, since most Americans work in the private sector, the United States Constitution and its corresponding Fourth Amendment privacy protection provides little guidance in private sector e-mail monitoring situations. The constitutions of eight states explicitly protect privacy and offer greater protection of the rights of public employees than does the United States Constitution. However, as with the Constitution, these documents protect public employees and the protection does not extend to the private sector. "The one and only notable exception to
Electronic Surveillance Of Employees 5 this rule is the state of California, that has extended its state constitution's protection of privacy to private as well as public employees." (Para. 10 and 11, Chiochetti, 2001) Explain if Herman's need to know whether his salespersons are honest is a sufficient ground for utilizing electronic surveillance. I would say Herman's need to know did justify his use of surveillance. As was the case, Herman detected some unethical behavior from one of his employees who did not accurately present some of the car specifications to his costumer. The salesman told his customer no need to worry about repairs, misstated how much gas mileage car the got, and indicated that it was not necessary to change the engine oil at the manufacture recommended oil change limits. Herman's surveillance of his employee actions allowed him to intervene and protect both the interest of his business and the customer. Herman ordered the salesman to give the costumer documentation on the car specifications which would inform her accurately and also protect the company from being sued for providing false information. Explain to what extent an employer can engage in electronic surveillance of employees. An employer monitors his employees for many reasons such as legal compliance, legal liability, performance review, productivity measures, and security concerns. There is little specific regulation of private-sector employers' surveillance activities. The Electronic Communications Privacy Act of 1986 prohibits intercepting electronic communications but generally excepts business communications. An employer's interest in monitoring his or her employees may conflict with the employees' privacy interests. The employees' interests may be asserted in a tort action for invasion of privacy. To
Electronic Surveillance Of Employees 6 succeed in such a tort action, an employee must show that he or she had a reasonable expectation of privacy in not being monitored. An employer's needs outweighs employees' privacy when the employer can point to a legitimate and significant business reason for the surveillance. Court usually does not consider extremely offensive means of surveillance and prefers less intrusive alternatives. Employers need to protect themselves by informing employees that they are subject to monitoring either by setting up a highly visible surveillance system or distributing to all employees and job applicants copies of a surveillance policy, or both. Employers should also consider providing employees an opportunity to comment on the results of any surveillance. Innocent third parties (customers) should be informed that their conversations could be monitored, and their implied consent to monitoring must be obtained. There is almost no limit to the electronic monitoring an employer may use to protect these interests. Employees have limited rights to protect themselves against electronic surveillance, because electronic surveillance is virtually unregulated. Therefore, unless company policy specifically states otherwise an employee should expect that no communication is free from being electronically monitored by their employer. Explain to what extent the inclusion of innocent, unaware third-parties in such surveillance determine whether it is legal. Third parties or customers have to be informed that their conversations could be monitored, and they must give at least implied consent to the monitoring (Halbert, 2009). The Patriot Act sign by President George W. Bush, Jr. in 2001 cleared many surveillance
Electronic Surveillance Of Employees 7 restrictions in particular one which protected the innocent of an unaware third party. As stated in an article by ACLU (2010): The Patriot Act increases the government's surveillance powers in four areas: 1. Records searches. It expands the government's ability to look at records on an individual's activity being held by third parties. (Section 215) 2. Secret searches. It expands the government's ability to search private property without notice to the owner. (Section 213) 3. Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218). 4. "Trap and trace" searches. It expands another Fourth Amendment exception for spying that collects "addressing" information about the origin and destination of communications, as opposed to the content (Section 214). A person must be aware that a conversation is being recorded and customers have no expectation of privacy unless they are specifically given such an expectation by the business. Herman monitors his sales employees and listens to their conversation with the customers. He wants to make sure salesmen are not crossing any line or comprising his business to any risk. This also leads him to listen to the customer conversations which is involve with customer personal information regardless of it sensitivity. According to Herman the information customers reveal during a car deal is not very personal or sensitive to the point that could make the customer have any expectation of privacy or get the company sued. Customers need to be informed that they are being monitored while monitoring the conversation of the sales person.
Electronic Surveillance Of Employees 8
References Employee Workplace Privacy and Employee Monitoring by Vikram David Amar and Alan E. Brownstein, n.d. - Retrieved on Jan 22, 2012 at http://www.justia.com/employment/docs/workplace-privacy.html Monitoring Employee E-Mail: Efficient workplaces Vs. Employee Privacy by Corey A. Ciocchetti (2001) - Retrieved on Jan 22, 2012 at http://www.law.duke.edu/journals/dltr/articles/2001dltr0026.html Surveillance Under the USA PATRIOT Act publised by ACLU, n.a., Dec 10 2010 Retrieved on Jan 22, 2012 at http://www.aclu.org/national-security/surveillance-underusa-patriot-act Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom edition (6th ed.). Mason, OH: South-Western Cengage Learning.