Right of Employers to Engage in Electronic

¶ … right of employers to engage in electronic surveillance of their employees remains an area of intense legal dispute. However, overall the courts have been expanding, rather than limiting the rights of employers to use new technology to monitor worker behavior. Workers cannot assume that they have an expectation of privacy in the public environment of the workplace. "New technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated" (Fact sheet, 2011, Privacy Rights).

Because employers own workplace computers and phones, they have a right to monitor employee's use of these devices. The one exception to this rule was in a New Jersey Supreme Court case where attorney-client privilege prevented an employer from reading the communications sent by an employee to her counsel on a company laptop through her personal password-protected email account. A California case in which a woman communicated with her attorney through a company email account was decided in the employer's favor, given that it was deemed that the woman did not have a reasonable expectation of privacy in the workplace on an account also used for work purposes (Fact sheet, 2011, Privacy Rights).

Other than such limited instances as attorney-client privilege, there are relatively few areas in which an employee can reasonably expect to have privacy in the workplace. The courts have found in favor of employees who have complained about the inability to use the bathroom or break room without facing electronic surveillance. But unless an employer states specifically that computer, telephone, and other employee behavior will not be monitored, employees have no reasonable expectation of privacy when they surf the internet, talk on phones, or even interact with one another.

Q2.

There is a great deal of difference between the two scenarios, given the emphasis upon expectations of privacy while deciding cases relating to employee privacy law. While employees cannot assume that they have a reasonable expectation of total privacy under all circumstances in the workplace, they have a greater expectation to some limited privacy in an enclosed office vs. An open area.

The courts thus do allow for some extent that social conventions relating to privacy should be honored. An excellent example of this relates to employee bathroom and changing room behavior. While some employers have tried to make the case that they have a need to monitor such behavior to ensure employees do not steal or engage in other prohibited behaviors, in most instances the right and expectation of the employee to personal privacy has been weighed as more important than the need for the employer to guard against potential theft.

Q3. Pilferage by employees is one of the greatest sources of revenue drain for employers. While employers cannot engage in electronic surveillance, in areas where employees have a reasonable expectation of privacy such as a restroom, in most public areas employers are free to monitor employees, when the see fit. Herman's use of such technology hardly makes him unique: "Almost half of the companies use video monitoring to counter theft, violence and sabotage. Of those, only 7% state they use video surveillance to track employees' on-the-job performance. Most employers notify employees of anti-theft video surveillance (78%) and performance-related video monitoring (89%)" (Fact sheet, 2011, Privacy Rights).

While the typical image of someone who engages in pilferage from the workplace is that of a fast food employee stealing an extra hamburger, or a Gap employee taking a pair of jeans, pilferage can have far more serious repercussions for a company in terms of lost revenue. Company trade secrets that are divulged to competitors can cost a company millions of dollars, depriving it of first-mover advantage or the ability to command customer loyalty on a tried and tested brand favorite like Coke (Introduction: Privacy in the workplace, 2011, Cyberlaw). This is why electronic correspondence is often monitored.

Monitoring of employee conduct is occasionally justified on the grounds that it is advantageous for employees as well as employers. For example, if an employee feels that he or she is being harassed because of racial, sexual, or other discriminatory reasons, the company can review telephone, computer, and even video testimony to support the employee's allegations or to support their own view (Introduction: Privacy in the workplace, 2011, Cyberlaw).

Monitoring for performance is another reason that employers may wish to observe employees -- if workers are slow, wasting time, chatting, or using the company telephones or Internet for personal reasons, this may be flagged. Failing to perform during working hours while being paid constitutes time theft in the eyes of many employers.

Finally, when an employee is working, he or she is representing the company -- sending email under the company name and speaking on behalf of the organization. Thus, companies justify monitoring to make sure that employees behave in a professional manner. (This is why call center interactions are often recorded). When the employee is on the job, he or she is speaking with the voice of the company (Introduction: Privacy in the workplace, 2011, Cyberlaw).

Q4. Some states have more stringent employee protections than which currently exists under federal law. Regarding telephone monitoring, "employers may monitor calls with clients or customers for reasons of quality control. However, when the parties to the call are all in California, state law requires that they be informed that the conversation is recorded or monitored by either putting a beep tone on the line or playing a recorded message….An important exception is made for personal calls. Under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call" (Fact sheet, 2011, Privacy Rights). "Currently, Connecticut is the only state where employers are required to divulge to their employees when they are being electronically monitored" online and in all instances of workplace interaction (Introduction: Privacy in the workplace, 2011, Cyberlaw).