Workplace Privacy, Employee Monitoring, and Ethics

Introduction: Privacy Expectations in the Workplace

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 of privacy while at work. The majority of employers in today's society, however, 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 restroom? Many employers have successfully argued that they have a legitimate business right to invade an employee's privacy in the workplace. Considerable controversy currently exists regarding this issue.

Advanced technologies now make it possible for employers to monitor almost every aspect of an employee's 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 important questions about the ethical and moral appropriateness 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 work-related calls and situations, unless an employer has reasonable grounds to believe that an employee is abusing organizational programs and services. When an employer has reasonable cause to suspect abuse of corporate equipment and time, the employer should be afforded the right to monitor employee communications to assess the nature and depth of the problem and take appropriate remedial action.

Forms of Employee Monitoring and Technology

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 made at work. Employers may choose to monitor calls with customers and clients in an effort to evaluate 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, always obligated to inform an employee that communications occurring within the workplace are being monitored. Only in some states do requirements exist that compel employers to notify parties of specific monitoring or surveillance measures. In California, for example, state law requires that all parties involved in a conversation be made aware that the conversation may be recorded or monitored, whether through a beep tone or a recorded message (CAN, 2003). Most employees assume that an employer will only use technology to monitor work-related calls and email communications. This is not always the case, however; private messages are very often intermingled with personal ones, and employers may end up with evidence and details regarding both forms of communication.

Under general federal case law, an employer is obligated to stop monitoring a call once it becomes clear that the call is personal in nature (CAN, 2003; Watkins v. L.M. Berry & Co., 704 F.2d 577, 583, 11th Cir. 1983). 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 making personal calls on business lines (CAN, 2003). In this environment, the only reliable mechanism available to ensure the privacy of personal calls is the use of a mobile or pay phone. Many employers have also argued that when they have reasonable grounds to expect abuse, they may monitor an employee's phone calls regardless of whether those calls are personal in nature.

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

Computer monitoring is one of the most controversial ethical subjects in the professional workplace today. Technological advances have made it increasingly simple for employers to monitor every detail of an employee's work, down to the individual keystroke. Computer monitoring takes many forms. One mechanism commonly employed by organizations is software that enables managers to view what is on a screen or stored on the hard drive of an employee's computer (CAN, 2003). Employers utilizing such software are able to monitor internet usage, including electronic mail and web browsing during work hours (CAN, 2003).

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

Keystroke monitoring is available for individuals in data entry and word-processing positions. Such programs typically track how many keystrokes per hour an employee performs (CAN, 2003). Employers argue that such software is ethically and morally acceptable because data entry and word-processing employees 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 performing above or below a designated keystroke threshold for their position. This software does not necessarily account for time an employee may spend away from the computer while networking or gathering information for a project, and therefore may penalize employees unfairly.

The most contentious aspect of computer monitoring is whether employers have the right to monitor electronic mail systems within the workplace. Virtually every employee has sent a personal email at one time or another. Some employees frequently use corporate email accounts for personal use during 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 account at any point in time. Messages sent between employees as well as messages sent to individuals outside the company are subject to monitoring (CAN, 2003).

Even personal accounts such as web-based email services 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 employer's 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 electronic voice mail and email systems are backed up permanently on magnetic tape and can be retrieved at any point in time (CAN, 2003).

Legal Framework Governing Workplace Privacy

Very few laws currently exist that regulate employee monitoring. The primary professional ethical consideration is whether 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 an issue guaranteed by the Constitution. However, privacy rights — which typically guarantee an individual's right to a "private life" — are often shaped by varying state and federal statutes and tort law judicial decisions (Rich, 1995).

Privacy laws are for the most part 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 privacy concerns that now extend to the workplace and to 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 in the workplace, even when they consider their communications to be private. Many states do protect an individual's right to privacy to some degree.

Many employers understand, however, 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 because 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 an "expectation of privacy" (Rich, 1995). Privacy cannot be guaranteed in the workplace, however, and therefore ethical standards should be established that govern the principles of monitoring private employee communications.

Federal law offers the least protection to employees seeking privacy standards in the workplace. State laws, however, recognize that employees have a right to privacy in some regard, and many states have statutes or common laws that specifically address employee privacy concerns. Employers may monitor almost any and all activities of an employee while in the workplace — up to and including actions during a lunch hour on company premises — if the employer has established a "reasonable basis for monitoring employees" in a given manner (Nolo, 2004). There are certain areas of any corporation that should be off limits to video monitoring, including employee bathrooms and changing areas (Nolo, 2004).