Privacy in the Workplace: Employee Rights and Employer Monitoring

Introduction

The importance of privacy has grown considerably over the years, and its handling has become increasingly crucial in recent times. Organizations found to be in default have faced serious legal consequences, prompting companies to take a greater interest in monitoring the activities of their workforce. However, this effort by employers to monitor workers is not without friction, given employees' right to personal privacy.

The right of workers to workplace privacy has given rise to numerous court cases in recent years, largely due to the digital revolution in business communication — including emails and electronic memos. Technological developments have made it possible for all forms of digital communication, as well as internet use in the workplace, to be placed under surveillance. Although employees have reservations about this, employers are generally protected by law. However, other aspects of workers' conduct — such as confidential discussions and the use of personal spaces within the office — are afforded stronger privacy protections. Nonetheless, behaviors such as substance use, when detected, can lead to mandatory testing (Smith & Burg, 2012).

When questions arise about employee workplace privacy rights, it can be very helpful to begin by asking: what actually happened? This question is important in order to understand which rights are at stake and what specific technology is involved. In some cases, general employees may be subject to different privacy regulations than isolated workers, or a company may demonstrate little interest in protecting worker privacy at all. In other cases, a company may take privacy seriously and implement measures such as password requirements, information classification systems, and electronic lockboxes.

It is also crucial to note that regulations protecting employee privacy have fallen significantly behind many of the technological advances now entering the workplace, and existing laws often avoid cases involving electronic privacy. The rapid pace of technological change has caused many judges to sidestep questions about the future direction of law in this area. Because of these challenges, individual workplace privacy issues must be carefully and thoroughly assessed on a case-by-case basis (Smith & Burg, 2012).

Technology and the Workplace

The misuse of workplace technology by employees has become increasingly common. Despite employer warnings, activities such as reading online news, shopping on the internet, and sending inappropriate emails during working hours remain widespread. Many employees mistakenly believe that their employers are unaware of these behaviors.

Research has shown that over a third of medium and large-scale organizations monitor their workers' email and web activity. Additionally, approximately 57% of workers believe that employers are justified in monitoring workplace communications (Muhl, 2003). Despite understandable concerns about this practice, sales of surveillance software rose from $139 million in 2001 to approximately $662 million within five years. The primary reasons cited for this growth were: risk of litigation (68%), security concerns (60%), and employee productivity (45%) (Cox, Goette, & Young, 2005).

Senior company personnel and technology experts frequently encounter problems related to the ease and speed of digital information transfer. Email, for instance, lacks the formality associated with earlier modes of communication such as letters and telephone calls. This informality tends to reduce the weight placed on message content, which can result in private or inappropriate information being transmitted. Additionally, the risk of messages being intercepted or misdirected poses serious consequences for both the company and its workforce (Cox, Goette, & Young, 2005).

Right of Privacy

Government employees may be protected by constitutional privacy provisions under the Fourth Amendment, but these protections do not extend to private employers and their relationship with employees. That said, certain legal protections for privacy do exist in the private sector — for example, laws against invasion of privacy. For both types of legal provision, the key question is whether the employee's privacy expectations meet the applicable legal standard. Given the diversity of workplace environments, each reported privacy issue must be assessed based on the specific context of that workplace. Relevant factors include how long the spaces and technology in question have been in use, how they have been used, and how personal items and information are stored in accordance with employer directives. The existence of relevant company policy addressing privacy is also an important consideration (Smith & Burg, 2012).

Conclusion

It is quite reasonable to conclude that employees should be allowed a certain degree of privacy in the workplace and that employers should be restricted from accessing confidential personal emails. Office computers should either incorporate systems that separate personal and work emails to reduce confusion, or employers should make clear from the outset that all emails will be subject to monitoring. Given the associated risks — including litigation and reduced productivity — companies must enforce their policies consistently and conduct thorough oversight of how their systems are used, ensuring that the rules are transparent to all employees. Business executives and technology professionals should take proactive steps to minimize adverse effects on their organizations. Workplaces with high levels of monitoring may encounter a distinct set of challenges stemming from a lack of trust between employer and employee. Information gathered through surveillance can also be mismanaged in ways that ultimately harm the organization (Cox, Goette, & Young, 2005).

Workplace privacy remains a grey area in the law. Accordingly, it is advisable for workers to maintain a clear separation between personal and professional technology use in order to take full advantage of whatever privacy protections are available. Any sensitive information that cannot be guaranteed to remain confidential should not be transmitted through unsecured channels, but kept away from public access (Smith & Burg, 2012).

Bibliography

Cox, S., Goette, T., & Young, D. (2005). Workplace surveillance and employee privacy: Implementing an effective computer use policy. Communications of the IIMA.

Muhl, C. (2003). Workplace e-mail and internet use: Employees and employers beware. Monthly Labor Review, 2, 36–45.

Smith, D., & Burg, J. (2012). What are the limits of employee privacy? Retrieved from GP Solo: http://www.americanbar.org/publications/gp_solo/2012/november_december2012privacyandconfidentiality/what_are_limits_employee_privacy.html