Workplace Privacy
Employers want to be sure their employees are doing a good job and employees do not want their every trip to the restroom watched. This has become the premier conflict in the workplace and surrounding monitoring in the workplace. Technology and new monitoring procedures 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. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications. Recent surveys have found that a majority of employers monitor their employees. They are motivated by concern over litigation and the increasing role that electronic evidence plays in lawsuits and government agency investigations.
A 2005 survey by the American Management Association found that three-fourths of employers monitor their employees’ web site visits in order to prevent inappropriate surfing. Moreover, 65% use software to block connections to web sites deemed off limits for employees. About a third track keystrokes and time spent at the keyboard. Just over half of employers review and retain electronic mail messages.
Over 80% of employers disclose their monitoring practices to employees. And most employers have established policies governing Internet use, including e-mail use (84%) and personal Internet use (81%). (“Employee Monitoring: Is There Privacy in the Workplace?”)
Employers and employees alike question workplace privacy rights but from different sides. Employers continue to explore new technologies to assist them in maintaining the productivity and professionalism of the workplace. With this in mind, many questions arise as to what is legal, what is appropriate, and what is right with workplace privacy and employee monitoring. Some of these questions needed judicial intervention to ascertain their legality. A few are: Can my employer listen to my phone calls at work? Is electronic mail private? What about voice mail? Can my employer obtain a record of my phone calls? Is my employer allowed to monitor my computer use and to see what is on my terminal while I am working? The answer to these questions is �yes” with very few exceptions.
Since the employer owns the telephone and computer network and the terminals, the employer may use them to monitor employees. Employees have some protection from electronic monitoring under certain circumstances. Union contracts may limit the employer’s right to monitor and public employees may have some minimal rights under the United States Constitution, specifically the Fourth Amendment that safeguards against unreasonable search and seizure.
In the United States, restricting employee communications may run afoul of fair labor laws where there is interference with union activities. In Pratt & Whitney, 6 AMR 36322, 12-CA-18446 (Feb. 23, 1998), the National Labor Relations Board (NLRB) reported in an advice memorandum that a company’s computer network was a “work area.” Accordingly… prohibiting all non-business use of e-mail on a company’s network could be unlawful. The NLRB has found that policies discriminating against union activity on computer networks run afoul of the National Labor Relations Act (NLRA). Employee monitoring that has the effect of selectively punishing labor organizing activities could violate the NLRA. (“epic.org”)
While most employers and employees alike recognize the right and need to monitor employee activities many employees believe they are entitle to some kind of notice from the employer before the monitoring can occur. Unfortunately, this is not the case. Most states do not have employee workplace privacy rights laws. Even in the few that do the laws carry little emphasis. Most State laws require only that employers give employees prior notice of electronic surveillance and avoid monitoring employees while they’re changing clothes; these laws essentially legalize electronic surveillance because they don’t prohibit it across the board.
My current employer utilizes very few of the above-mentioned techniques to monitor employees. Although the company does have a written computer and telephone use policy these forms of communication are rarely, if ever, monitored. Furthermore there are signs posted at most entrances to the facility warning employees of video surveillance though this is strictly limited under a current collective bargaining agreement. Other notices notify employees and visitors alike of the possibility of search by company personal. This is more a scare tactic to prevent theft and, to the best of my knowledge, has never been utilized.
Another major issue with respect to workplace privacy is the Health Insurance Portability and Accountability Act or HIPAA.
The complete HIPAA law is concentrated in simplifying the health care system and ensuring security for patients. Title IV is a safeguard ensuring the protection of privacy for your medical information. Along with federally ensuring your privacy, the HIPAA law is intended to lead to reduced fraudulent activity and improved data systems. When fully adhered to by all that are required to comply, HIPAA regulation is estimated to save providers nine billion dollars annually. (Sage)
Some health care providers have taken steps such as controlling access to offices with medical files only allowing employees limited access to the minimum amount of information needed. Additionally special security measures to make electronic transactions secure are being used by insurance providers and many medical facilities.
As stated above the employer has the right to monitor nearly every aspect of an employee’s movements while at the work place but what about privacy away from work and can an employer test an employee for drug use away from the workplace?
Employees of government and public entities have a constitutional right to privacy that protects them from most employers monitoring of, or even inquiring about, their off the job conduct. For public employers, then, monitoring is largely off-limits.
In the private sector, a number of laws prohibit employers from intruding into their employees’ lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees’ off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker’s lawful conduct off the job.
Because drug testing has the potential to reveal an employee’s use of drugs outside of work hours, it has been the subject of much privacy litigation. In general, drug testing is permitted in the job application context, where employees are performing safety or security-sensitive work, or when an employee has given an employer some reason to believe that he or she is impaired by drugs at work. (“NOLO-Legal Solutions for You, Your Family & Your Business”)
Now that we have ascertained the scope of an employer’s abilities and rights to gather information on the employee; what are the employee’s rights as far as inspecting employer’s information on the employee, i.e. personnel files? With very few reservations, an employer must allow the employee to inspect his own personnel files. The employer must make these records available during the regular business hours of the office where these records are maintained and when time is available to inspect the personnel files in question. The employer may require the employee to inspect records during unpaid time and the employer may require, in writing, the purpose of the record’s inspection and specifically which portion of the personnel files are to be inspected.
“Employee Workplace Privacy Rights.” Employeeissues.com 2003-2009. Web. 9 Oct 2009. <http://employeeissues.com/workplace_privacy.htm>.
�Fact Sheet 7: Workplace Privacy.” Employee Monitoring: Is There Privacy in the Workplace? Posted March 1993. Revised April 2009. Privacy Rights Clearinghouse / UCAN, Web. 9 Oct 2009. <http://www.privacyrights.org/fs/fs7-work.htm>.
“Workplace Privacy.” epic.org. September 11, 2008. Electronic Privacy Information Center, Web. 9 Oct 2009. <http://epic.org/privacy/workplace/>.
Sage, Bobbie. “HIPAA Law and Regulations.” About.com Personal Insurance 2009: Web. 9 Oct 2009. <http://personalinsure.about.com/od/health/a/aa041806a.htm>.
“Monitoring Employees’ Off-Duty Conduct .” NOLO-Legal Solutions for You, Your Family & Your Business (2009): n. pag. Web. 10 Oct 2009. <http://www.nolo.com/legal-encyclopedia/article-29994.html>.