Professional ethics principles and practices

Privacy in the Workplace

"Employee Monitoring: Is there Privacy in the Workplace?" 2003. Consumers Action Network

Professionally ethical standards dictate that employees should be committed to working and performing at a professional level while in the workplace. Most employees assume that they have a right to a reasonable expectation to privacy while in the workplace. The majority of employers however in today's society, do utilize some form of employee surveillance and monitoring. This monitoring often extends into private emails and phone communications. Do employers have the right to monitor an employee's every move, from a trip to the water cooler to a visit to the lavoratory? Many employers have successfully argued that they have a legitimate business right to invade an employee's privacy in the workplace. Currently much controversy exists regarding the issue of workplace monitoring.

Advanced technologies now make it possible for employers to monitor almost every aspect of an employees' job. Technology allows monitoring of telephone usage, computer terminal usage, electronic and voice mail and internet usage (CAN, 2003). Typically the monitoring of such usage is unregulated, and therefore poses the questions of the ethical and moral righteousness of excessive monitoring in the workplace.

Employers should have the right to monitor employee communications while in the workplace, including telephone and computer usage. Such monitoring however, should be restricted to an employers surveillance of work related calls and situations, unless an employer has reasonable ground to expect that an employee is abusing organizational programs and services. When an employer has reasonable cause to suspect that an employee is abusing corporate equipment and time, then an employer should be afforded the right to monitor employee communications to assess the nature and depth of the problem, and take appropriate remedial action.

In most situations, unless a company policy specifies otherwise, an organization may "listen, watch and read most of your workplace communications" (CAN, 2003). This includes phone calls at work. Employers may choose to monitor calls with customers and clients in an effort to gain an adequate evaluation of quality control (CAN, 2003). Such monitoring is purposeful in nature and well within the guidelines of professional ethical standards. Many employers have established policy guidelines that specifically inform employees of the situations and circumstances under which their communications may be monitored.

An employer is not however, in all circumstances, obligated to inform an employee that they are monitoring communication exchanges that occur within the workplace. Only in some states do requirements exist that would require employers to inform the consumer of specific monitoring or surveillance measures. In California for example, the state law requires that all parties involved in a conversation be made aware that there conversation may be recorded or monitored, whether through use of a beep tone or recorded message (CAN, 2003). Such notification does allow the employer to monitor the content of their messages. Most employees assume that an employer will only utilize technology to monitor work related calls and email communications. This is not the case however, and very often private messages are entwined with personal ones, and employers end up with evidence and details regarding both forms of communication.

Many employees have argued that the law was established to protect and maintain personal employee and consumer rights to privacy. Under general federal case law, an employer is obligated to stop monitoring a call once they realize it is personal in nature (CAN, 2003 & Watkins v. L.M. Berry & Co., 704 F .2d 577, 583 11th Cir. 1093). However, the majority of employers inform employees that personal phone calls are against company policy, and therefore the employee is expected to assume the risk of monitoring when they make personal calls on business lines (CAN, 2003). In this day and age the only mechanism available to ensure privacy of personal calls is usage of mobile or pay phones. Many employers have also argued that when they have reasonable grounds to expect abuse, they may monitor employee's phone calls for content regardless of whether or not their calls are private in nature.

Many employees assume that conversations they have with co-workers are also private in nature. However, conversations with co-workers are also subject to monitoring just as conversations with customers are over the telephone (CAN, 2003). In most circumstances phone calls of any kind that employees make can be monitored and recorded via a device called a 'pen register' (CAN, 2003). This register enables the employer to view any phone numbers dialed by an employee's extension, and allows recording of the length of each phone call (CAN, 2003). Employers justify usage of such mechanisms as a way to track costs and ensure employees are spending an adequate amount of time on appropriate tasks. Usage of such recording devices does present a disadvantage to employees; many employees have argued that information gathered from pen registers may unfairly portray their usage of the phone over long durations with particular customers, and are concerned that employers will use such devices to measure efficiency rather than the quality of service that employees may be offering (CAN, 2003).

Computer monitoring is one of the most controversial ethical subjects in the professional workplace today. Technological advances have made it increasingly simpler for employees to monitor every detail of an employees work, down to the keystroke. Computer monitoring comes in many forms. One mechanism often employed by organizations is a software program that enables manager to view what is on a screen or stored in the hard disk on an employees computer (CAN, 2003). Employers utilizing such software are able to monitor internet usage including use of electronic mail and web surfing during work hours (CAN, 2003).

Many employees have attempted to argue that such mechanisms do not adequately assess whether or not they are putting in an appropriate amount of time on the job. For example, an employee may argue that their netsurfing is directly related to their job function. Other employees argue the legitimacy of web surfing during their official break or lunch hours. For employers to adequately assess the actual times that an employee utilizes internet and corporate resources, and compare them to employee's reported lunch and day breaks, a significant amount of time and resources would have to be wasted.

Keystroke monitoring is available for individuals in data entry and word-processing jobs. Such programs typically monitor how many keystrokes per hour an employee is performing (CAN, 2003). Employers argue that such software is ethically and morally acceptable because data entry and word processor workers should be expected to maintain a certain level of performance throughout the day. Such software has the ability to inform employers if a particular employee is also performing at a rate above or below a designated number of keystrokes that should be expected for their position. This software does not necessarily take into consideration time away from the computer an employee may be spending networking or gathering information for a certain project, and therefore may penalize employees unfairly.

Most employers have the ability to monitor what an employee is viewing on their terminal as they are viewing it. Employees are not granted many protections under the law, unless they have a contract with an employer that specifically limits an employer's right to monitor there daily activities. Computer monitoring often occurs without an employee's knowledge.

The biggest source of controversy related to the ethical morality of computer monitoring is whether or not employers have a right to monitor electronic mail systems within the workplace. Nary an employee has worked at any company and not sent a personal email at one time or another. Some employees frequently use corporate email accounts for personal use on breaks. An employer owns the electronic mail system used at any company however, and therefore maintains the right to review the contents of any email programs at any point in time. Messages that are sent from an employee to anyone in the company as well as messages sent to individuals outside of a company are subject to monitoring (CAN, 2003).

Even personal and private accounts such as Yahoo and Hotmail can be monitored by employers if an employee is using a corporate computer terminal. The reality is that many court cases have been decided in the employers favor, and therefore employees need to be very cautious about performing personal tasks on company time (CAN, 2003).

Many employees assume that by deleting personal messages, voice mails and emails they are releasing themselves from liability. Unfortunately the majority of voice mail systems that are electronic in nature and email systems are backed up by company's permanently on magnetic tape and can be retrieved at any point in time (CAN, 2003).

Very few laws currently exist that regulate employee monitoring. In fact the primary professional ethical consideration is whether or not current law "provides adequate protection for the individual's right to privacy in the workplace from threats posed by computer technology, electronic eavesdropping, video and sound recording equipment and databases filled with personal information" (Rich, 1995). Privacy is considered a key value by many individuals. In the United States Americans consider their right to privacy in issue guaranteed by the constitution. However, privacy rights which typically guarantee an individual's right to a "private life" are often contorted by varying state and federal statues and "tort law judicial decisions" (Rich, 1995).

Privacy laws for the most part are enacted to ensure that an individual maintains their right to privacy within the confines of their own home (Rich, 1995). The advent of advanced technology has created new changes in privacy concerns that now spread to the workplace and society in general. Privacy should be considered the right of any individual to "control the dissemination of information about oneself" (Rich, 1995). This ability is compromised when an employee shares information about him/herself in the workplace, even if they consider their communications to be private. Many states do protect an individuals right to privacy.

Many employers understand however, the idea that private electronic monitoring of workplace actions does not fit the "traditional definition of a search" (Rich, 1995). Most individuals feel they are protected against unreasonable searches and seizures, but as the concept of search is not uniformly defined for corporate entities, a large gap exists between interpretation and reality. Many employees enter the workforce with and "expectation of privacy" (Rich, 1995). Privacy can't be guaranteed in the workplace however, and therefore ethical standards should be established that govern the principles of monitoring private employee communications.

Employees do have an obligation first to attempt to protect their privacy within the workplace. If an employee for example, needs to call their doctor to obtain work results and does not have access to a mobile phone, it seems reasonable that an employee should be allowed to conduct his/her call on a designated break or lunch hour using a company phone, provided that the call does not incur long distance charges. An employer under such circumstances should not have the right to monitor or record such phone calls, especially considering the content of the call might include very private information regarding an employees health status. A reasonableness standard must be assessed within the workplace that judges "whether the inception and scope of invasion of privacy is reasonable under the circumstances" thereby justifying employers expressed need for monitoring or supervision (Rich, 1995). An employer must validate their need to monitor an employees private communications if they intend to do so at all, in order to attempt to maintain a reasonable expectation of an employee's right to personal privacy.

Most people would argue that employees should be afforded a reasonable measure of personal privacy in the workplace. However the reality exists that court law is very subjective, and an employee's workplace privacy cannot be guaranteed by any means at this point in time. Many employees enter the workforce with a "reasonable expectation of privacy" yet no laws or current regulations currently interpret or define what it is that can be considered reasonable protection under the law.

Employers do have a very strong leg to stand on. E-mail communications for example, should be considered an employer tool if the employee is using a work related account set up for work related communications. In this situation, the "employer's interests outweigh those of the employee" and privacy interests of the employee are of little concern to the employer. The employer may legitimately argue that the email account being utilized was established and maintained for business purposes only, and therefore is rightly monitored and recorded to ensure workplace efficiency.

Employees have argued however that they have the right to a "reasonable expectation to privacy in work areas" that are of exclusive use those the employee uses, including offices, unless an employer informs the employee that they will be monitoring the area in question (Rich, 1995). The employer however in most situations, has no such expectation of reasonable privacy if an employee is using company equipment on company time. In most cases an employer will support this notion, but justify having monitoring equipment when there is reasonable evidence to suggest that an employee may be performing extraneous personal activities on company time. An employer also does have the right to expect that an employee will be utilizing company space and equipment to complete company assignments during the day, not personal ones. An employer may in essence argue from an ethical standpoint that employees should be obligated to perform work related functions only while at the workplace. This argument has served as the justification for many employee surveillance claims.