Employee Privacy in the Workplace: Ethics and Law

Introduction

In the workplace, employees are generally expected to relinquish some degree of personal privacy in order to succeed in their organizational roles. The debate on workplace privacy concerns how much privacy employees need to give up in their pursuit of professional success. The morality, ethicality, and legality of monitoring employee actions have been challenged across various settings, with each side presenting strong arguments. Employers argue that monitoring is necessary to ensure employees do not engage in illicit activity that impedes productivity and to limit organizational liability. Employers also need to ensure that employees meet performance expectations and carry out the duties for which they are compensated.

Workplace privacy is important because it helps to eliminate emotional and physical stress — such as fatigue and lack of motivation — that can result from privacy infringement. On the other side, employers attempt to maintain high productivity levels, which has created ongoing disputes over the infringement of privacy and freedom. Complicating matters further, there are no comprehensive privacy laws that uniformly govern privacy in the workplace (Cozzetto & Pedeliski, 1997).

Even where laws touch on privacy, many issues remain legally unclear. Workplace privacy motivates employees and makes them feel free; however, it can create management and performance challenges for employers. It is therefore important that employees and employers find ways to resolve privacy issues — ensuring employees are held to appropriate standards while retaining their freedom. This paper argues that workplace privacy, though a meaningful consideration, is not the most important workplace issue, as concerns such as disability employment, discrimination, and health and safety carry stronger legal, moral, and ethical weight.

Legality of Workplace Privacy

The law does not explicitly define the legality or illegality of workplace privacy activities, and privacy cases have largely been decided on an ad hoc basis. In Cramer v. Consolidated Freightways (2001), a court ruled that California's privacy laws were violated when an employer installed video and audio surveillance equipment in employee bathrooms. In Halford v. United Kingdom, it was decided that monitoring calls made by Ms. Halford from her work telephone constituted a breach of her right to privacy. In Deal v. Spears (1992), the court ruled that employees do not give employers implicit consent to monitor their calls simply because an employer has stated that calls may be monitored to curtail personal use. In O'Connor v. Ortega, the court recognized a reasonable expectation of privacy in certain workplace spaces, such as personal desks and file cabinets. In K-Mart Corp. Store No. 7441 v. Trotti, it was decided that searching an employee's locker violated their right to privacy (Frayer, 2002).

Several pieces of legislation address aspects of workplace privacy. The Electronic Communications Privacy Act prohibits employers from intentionally intercepting electronic communications. The National Labor Relations Act provides a framework for organizing labor and ensuring fair labor practices, under which workplace privacy can be interpreted as a fair workplace concern. The Employee Polygraph Protection Act protects private-sector employees from being subjected to polygraph tests, though government employees and contractors remain subject to such tests. The Connecticut statute requires employers to notify employees when they will be electronically monitored.

Despite the existence of this legislation, many issues remain uncovered by law. In Shoars v. Epson (California), a court ruled that the state law protecting employees from electronic surveillance did not extend to email. This case illustrates that the laws and statutes governing workplace privacy are relatively limited and cannot reliably serve as the sole foundation of a legal argument in this area (Griffaton & Porter, 2003).

Ethical Theories and Frameworks

To assess the ethicality of workplace privacy, it is essential to examine the relevant ethical theories that will serve as the basis of this analysis. Three ethical theories are applied here. The first is the utilitarian theory, which evaluates an action by its consequences. Under this view, the most ethical action is the one that produces the greatest benefit overall; provided the desired consequence is achieved, the action can be considered ethical. The second is the deontological theory, which evaluates the moral nature of the action itself, independent of its consequences. A key principle of deontological ethics is the golden rule — acting toward others as one would wish to be treated. Kantian ethics will be used within this framework. The third is the social contract theory, which holds that an implicit contract exists between citizens and the state, defining a set of moral and legal rules that individuals should follow in their conduct.

Conclusion

Though no comprehensive legal framework governs workplace privacy, employees have increasingly been willing to surrender a portion of their privacy in exchange for fulfilling their organizational roles. Employers, in turn, have learned the importance of monitoring employees while allowing them enough freedom to avoid a complete infringement of their privacy. Nevertheless, other workplace issues — including disability employment, discrimination, sexual harassment, child labor, day care, fair trade, health benefits, overtime, and workplace safety — are supported by stronger legal and ethical frameworks, making them more pressing concerns than workplace privacy.

Although workplace privacy does not carry the same weight as these other issues, each organization must still determine the most appropriate level of employee monitoring. That level should be established through open communication between employees and employers to ensure that monitoring does not become a wholesale infringement of personal freedom and privacy (Shumaker, 2002). Finding this balance remains a shared responsibility between management and staff.

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