Workplace Privacy: Employee Monitoring Rights and Limits

Introduction to Workplace Privacy

In recent years, different workplace dynamics have gained increasing importance. Among these issues, workplace privacy has attracted a great deal of attention. Practices such as drug and alcohol testing, criminal records checks, background checks, and electronic performance monitoring have become common in the corporate world. Most employers consider these activities necessary for maintaining organizational effectiveness, while employees hold different concerns about their privacy.

Employers take the view that, in conducting business, they must ensure workplace effectiveness and therefore need to monitor employees. They use various methods of quality control and cost management. Because employees are an integral part of any business, employee monitoring becomes part of routine operations to ensure that business goals are met. Organizations that invest heavily in recruitment and selection naturally seek a return on that investment. Employees, however, also have expectations of their own. Most workers today look for empowerment and freedom in decision-making. They regard excessive controls, checks, and balances as a restriction on their freedom and privacy.

Technology and Employee Monitoring

Employers today make extensive use of technology to monitor employee behavior. New and advanced technologies enter the market constantly, making privacy an increasingly pressing issue. In the presence of such technologies, it is difficult for employees to keep information private. "Nine out of ten employers observe your electronic behavior, according to the Center for Business Ethics at Bentley College. A study by the American Management Association and the e-Policy Institute found 76% of employers watch you surf the Web and 36% track content, keystrokes, and time spent at the keyboard. If that isn't unsettling enough, 38% hire staff to sift through your email. And they act on that knowledge. A June survey by Forrester Research and Proofpoint found that 32% of employers fired workers over the previous twelve months for violating email policies by sending content that posed legal, financial, regulatory, or public-relations risks" (Dell & Cullen, 2006).

Cell Phone Monitoring

Technology now offers employers new ways of monitoring employee performance, activities, and even movement. Some organizations explicitly inform employees that they are being monitored, while others do so covertly. Monument Security in California, for example, informed all of its employees—including security guards and patrol drivers—about its software, Xora. Using this application on company-issued cell phones, Monument Security can track employee movement via GPS technology. If an employee drives too fast or travels to an unauthorized location, management receives automatic alerts. According to the company, this technology helps maintain efficiency during working hours. However, the same technology also allows management to track employees' whereabouts when they call in sick.

Web Monitoring

Software products such as Surf Control allow employers to monitor employees' web activity. Companies that use such tools say they are concerned only with what employees do during work hours and whether their productivity is being affected. With a wide range of software and computer programs available, managers can now learn a great deal about their employees through devices such as cell phones and computers.

Many people have developed habitual web-browsing behavior that continues in the office. Organizations that permit web access generally monitor the time employees spend on work-related browsing. Some employees spend significant time on social networking sites or inappropriate content. Employers believe this type of behavior can disrupt work routines and argue that some oversight is necessary. A complete ban on web access would not be the ideal solution, as it could stifle creativity and damage morale. Companies whose work inherently requires internet access cannot implement such a ban. In such cases, employers can monitor behavior and intervene only when there is a genuine concern.

Email Monitoring

Many employees assume that the volume of emails they send and receive makes monitoring impractical. In reality, sophisticated software has detected sexist messages, harassment, and even attempts to share trade secrets. Tools such as Surf Control and MessageGate can block the exchange of files or emails containing the company name, references to executives, or inappropriate language. Well-known organizations such as Merrill Lynch, Boeing, and various Wall Street firms employ such policies. Some companies restrict access to personal email services or instant messaging platforms such as Yahoo or MSN during office hours.

Monitoring Blogs

Blogs represent a relatively recent addition to employees' web activities. The internet hosts thousands of blogs where individuals can freely express their views. It would be extremely difficult for employers to monitor all of these platforms, and equally difficult to discourage younger employees from participating. In this context, the most practical approach for companies is to educate employees about internet etiquette rather than attempting wholesale surveillance.

Phone Monitoring

Employers also monitor employee telephone activity. Software such as Nice Systems is commonly used for call tracking, alerting managers when employees raise their voice, use inappropriate language, or mention competitors. Companies that rely heavily on customer service use call monitoring to route calls efficiently and to measure service quality by tracking call length, intervals between calls, and call volume. Such systems are also found in companies outside customer service, and some argue that they restrict employee freedom and create an oppressive atmosphere. Employers counter that such systems help control excessive personal phone use.

In reality, numerous examples suggest that employers must carefully weigh the outcomes before implementing such policies. "Federal Express, Bell Canada, USAA, and Northwest Airlines have all found that too much monitoring to keep work rates high 'spoils service'" (Bernstein, 1991, as cited in Crampton & Mishra, 1998). When Federal Express attempted to cut costs by reducing the average time customer-service agents spent on each call, productivity, quality, and morale all suffered. The company made keeping calls under 140 seconds worth 50% of an agent's performance review. This decision backfired: not only did employee stress increase, but agents also cut customers off before their questions were fully answered in order to meet the time target (Crampton & Mishra, 1998). "Thus, it is important to recognize the trade-offs between productivity goals and those of rule compliance" (Crampton & Mishra, 1998).

Off-Duty Monitoring

While many checks and balances are applied within the office and during working hours, some employers go further and intrude into employees' personal lives. Programs are now available that can trace an employee's internet activity at home. There have been incidents in which employees posted photographs from company training sessions without the consent of their organization or colleagues, prompting employer responses. Some companies use programs such as Verified Person to track employees even outside the workplace. A clear line must be drawn here. Employers offer employment in exchange for certain work and duties—they do not own their employees' lives. They have no right over employees' personal affairs beyond what is necessary to protect their legitimate business interests. Monitoring employees around the clock is unethical, and such practices should be discouraged. Legislation addressing this issue is warranted. If left unchecked, this kind of surveillance could cause serious harm to individuals and workplace culture.

Medical Conditions and Drug Testing Policies

Most would agree that employers have the right to set workplace expectations, but the extent to which they can impose conditions on employees' personal health is debatable. Many organizations, for example, ban smoking on their premises. Can employers go further and ban smoking during working hours even when employees are off-site? Some organizations have also attempted to create different insurance tiers based on whether employees smoke.

If such medical conditions become acceptable, some fear that other health markers—such as cholesterol levels—could eventually be included as conditions of employment. This actually occurred in Athens in 1993, when its municipal government required applicants to have acceptable cholesterol levels. The policy was ultimately abandoned following public outcry, but it illustrates how far employer overreach can extend.

Drug testing is a common practice in many organizations, given the proven negative effects of substance abuse on employee performance. Employees working under the influence of drugs do not perform like their unimpaired counterparts, and drug abuse affects not only individual performance but also the broader work environment.

Drug testing is generally accepted by both employers and employees, but alcohol is a more contested issue. Many people drink socially and still perform their duties effectively. Employers may reasonably restrict drinking on premises or during working hours, but extending that restriction to off-duty conduct crosses a significant line. In one illustrative case from Indiana, an employee was terminated after volunteering that he occasionally drank socially outside of work hours, in violation of company policy. The Indiana Court of Appeals ruled that the firm could not demonstrate that his drinking had a negative impact on his job performance or that there was just cause for termination. The court indicated that employers may regulate a worker's conduct on the job, but "the same interest does not always exist in regulating the employee's off-duty conduct." While the court ruled in the worker's favor, the language was vague and did not preclude the possibility that the policy might be upheld under different circumstances (Losey, 1994).

Technology can play a constructive role in addressing health-related workplace concerns. Computers are now capable of detecting impairment through performance or reaction tests that measure a person's ability to manipulate a cursor on a visual display terminal (VDT) screen. This approach allows employers to assess fitness for duty without requiring invasive medical examinations. Such performance-based tests are less intrusive than conventional medical screening. Other technological advances, however, can be highly intrusive and even counterproductive.

References

Crampton, S., & Mishra, J. (1998). Employee monitoring: Privacy in the workplace? SAM Advanced Management Journal, 63(3), 4+.

Cozzetto, D., & Pedeliski, T. (1997). Privacy and the workplace: Technology and public employment. Public Personnel Management, 26(4), 515+.

Dell, K., & Cullen, L. (2006, September). Snooping bosses. Time, 168(11), 38–40.

Losey, M. (1994, September). Workplace privacy: Issues and implications. USA Today, 123(2592), 76+.