Workplace privacy: issues and considerations

Employers and employees often have conflicting interests in the workplace. One of these conflicting interests concerns the privacy rights and considerations of the employees vs. The rights of the employer to monitor the activities of its employees. A relaxed, comfortable workplace promotes good morale but too much comfort can result in a workforce that takes their responsibilities for granted. Achieving a happy medium is the ultimate goal.

The development of modern technology has provided employers with increased opportunity to monitor the activities of their employees both on the job and off. Telephone, computers, voice mail, and the internet have provided employers with vehicles that were not available just a decade or so ago. Because of the newness of such devices, regulations and laws governing the use of them are not well developed. As a result, at the present time, employers are enjoying virtually unfettered opportunities to listen, watch, and read most anything and everything that their employees are doing while at work. Some more aggressive employers are even using such devices to do the same in regard to their employees' private lives as well. In limited cases, some corporations and businesses have enacted policies limiting such interventions by the company but there are very few such companies.

The concept of privacy is complicated. What is private for one person may not be for another and when it comes to privacy in the workplace the issue becomes even more complicated. From a legal point-of-view, what constitutes privacy is essentially the expectation of the individual. The U.S. Supreme Court has defined what this expectation standard is and established tests for determining it but such a review is beyond the scope of this paper. In essence, however, the Supreme Court has ruled that for the most part the employer is endowed with the power of determining what the privacy expectations of an employee might be and under what circumstances an employee might expect privacy (City of Ontario v. Quon).

The problem of workplace privacy is also quite broad. It begins even before an employee is hired. With the advancement in technology employers are now provided with a variety of means in which to uncover information regarding potential new hires. It is imperative that any individual either beginning to enter the workplace or having already been in the workplace take every measure possible to guard his or her privacy. Regardless of one's past, events that may seem totally innocent can affect one's employability as more and more businesses routinely perform background checks on their employees. Background checks provide the classic battle between employer's right to know and the employee's right to maintain a private life. Employers have an interest in ensuring that the people they are hiring are responsible, honest, trust worthy individuals. An individual employee can have a long-term effect on the operation of a business and how the business is perceived in the community. These are important considerations for a business owner. The employee, on the other hand, has the right to expect that information about his or her past that might be adverse is not used inappropriately. Therein, lies the essential balancing that occurs in all workplace privacy matters.

The burden of background checks falls primarily upon the shoulders of the employer. There is little that an employee can do facing the possibility of a background check to change the situation. The employee's background is what it is and the employee is forced to deal with the consequences of his personal history. The employer, on the other hand, when conducting a background check is suddenly provided with information that is potentially sensitive. Under these circumstances, employers are placed in a position where they must exercise strict confidentially standards in order to protect the privacy of their employees or their potential employees. This requires that a business establish a rigid methodology that minimizes and, hopefully, eliminates the sensitive information being used for unethical purposes. Additionally, businesses must be diligent in how they apply background information. The failure to treat every employee or job applicant equally in regard to the treatment of what background information either qualifies someone for employment or makes them unqualified is an important consideration in regard to a business' litigation exposure for a violation of privacy rights. A consistent policy applied to all employees and applicants makes it far less likely that a business will be subject to litigation losses.

The old cliche is that "All is fair in love and war," but one might add that this includes the area of business as well. Businesses exist to make a profit and for many businesses if this means sacrificing the privacy of one or all of its employees means greater profits than it is a small price to pay. Fortunately, there are those in the business world who are aware of this philosophy and who take positive steps to develop a set of ethical standards to govern the operation of business (Tabak). The underlying attitude supporting these ethical standards is that the maintaining of ethical standards in regard to protecting the privacy of the individual is important in order to protect both the organization and its employees from legal action and to promote the business' reputation in the community.

One of the examples where businesses have applied ethical standards to the issue of privacy is in the area of drug testing. Drug testing has become as widespread as a background check with the theory usually being adopted by employers is the utilitarian one that produces the greatest excess of benefits over the harm (Baglione). This position often causes employers difficulty in application. The employer argues that they have a moral right to a fair day's work in exchange for a fair day's pay and that anything that seriously interferes with an employee rending a fair day's work is subject to review. The fact that drugs can significantly impair a person's work performance therefore grants the employer the right to test the employee. Employees, however, offer arguments to the contrary. First, employees view drug testing as a humiliating. Second, they see the results of drug testing as a poor basis for measuring a person's work performance. Recreational use may have no effect on an individual's work performance and if performance is the basis than testing for the sake of testing is simply an invasion of privacy. Finally, the results of drug testing are notoriously unreliable. The statistical incident of erroneous results is extremely high and when the consequences are so possibly severe employees argue that they should not be relied upon (Carpenter).