Workplace Privacy
Workplace Privacy
Should employees have a right to privacy when it comes to their behavior in the workplace? Or should employers have the ability to override privacy rights by monitoring their workers' activities during company time?
Many Americans assume that they are guaranteed a right to privacy. In other words, they believe that their public and private lives are separated by some kind of barrier that protects their confidential information and personal communications from being exposed to others. However, in reality, the right to privacy is not always guaranteed under U.S. law. In fact, it is vulnerable to being overridden in many different contexts, including in the workplace. Indeed, U.S. employers have the latitude to supervise their workers' activities in various ways that could be construed as intrusive. For example, in many instances, employers are empowered to monitor their workers' use of telephones, computer programs and the Internet. Employers can also sometimes require job applicants and current employees alike to undergo in-depth credit checks and drug tests. Furthermore, in some states, employers are free to monitor the health and habits of their employees, and charge those who make unhealthy "lifestyle choices" (such as smoking and overeating) higher fees for health insurance.
Privacy advocates argue that such monitoring infringes on the solitude or "personal space" of employees. In their view, the right to privacy should be more respected in U.S. workplace s, even though it is not necessarily guaranteed by law. On the other hand, employers counter that it is important for them to monitor their employees, at least to some extent, in order to boost productivity and ensure that no illegal or disruptive activities are occurring in
the workplace.
The results of an August 2007 Gallup poll suggest that employers have legitimate grounds for being concerned about lost productivity. The poll--which canvassed more than 1,000 full- and part-time employees--found that respondents wasted an average of one hour per day at work. According to various studies, all those wasted hours add up to billions of dollars in losses for U.S. companies every year. In order to counter such losses, more and more companies have adopted active employee monitoring techniques. For example, 55% of major U.S. companies reported that they stored and reviewed employees' e-mail communications in 2005, up from 27% in 1999, according to the American Management Association.
The apparently increased rate of employee monitoring has intensified the debate over workplace privacy rights. Exactly how much employee monitoring is too much? And which concern is more important--an employee's right
to privacy, or an employer's right to oversee activities in the workplace to ensure that employees are not wasting time or abusing communication technology? Those seemingly simple questions have prompted extremely complex legal and ethical discussions on the status of privacy rights in the U.S.
Advocates of workplace privacy maintain that employees' right to privacy is usually more important than the interests of employers. They contend that the aggressive monitoring techniques used by many employers--such as reading workers' e-mails--are intrusive violations of privacy that should be either restricted or outlawed completely by the government. Excessive employee monitoring creates an atmosphere of suspicion in the workplace that suppresses freedom of speech and hurts productivity rather than helps it,privacy advocates add.
Supporters of workplace privacy also contend that employers have no right to impose "lifestyle changes" on their employees (e.g., forcing them to quit smoking). Unhealthy activities such as smoking and overeating are perfectly legal, privacy advocates say, and it is wrong for employers to suppress them. In general, privacy supporters argue that employers should mind their own business and interfere with their employees' lives as little as possible.
Critics of workplace privacy, meanwhile, argue that employers have a legitimate right to oversee
the workplace activities of their employees. In the absence of monitoring, employees tend to waste company time by making personal phone calls or aimlessly surfing the Internet (a practice sometimes called "cyberslacking" or "goldbricking"), critics claim. Monitoring is therefore necessary to keep employees on task and maintain productivity. Opponents of workplace privacy credit active employee monitoring with reducing potentially
serious workplace problems, including sexual harassment and the leaking of sensitive corporate information via the Internet. In addition, they contend that employers have the right to crack down on the unhealthy lifestyle choices of their employees. Such crackdowns reduce health insurance costs dramatically and encourage employees to take better care of themselves, thereby benefiting all concerned, critics of workplace privacy conclude.
Workplace Privacy Laws in the U.S.
Legal experts stress that there is no single, comprehensive law in the U.S. regulating workplace privacy rights. Typically, workplace privacy disputes are resolved using some combination of federal, state and common law (also known as "case law"). Because U.S. law is not entirely clear on the issue of privacy rights,
resolving workplace disputes can be a somewhat tangled and confusing process
Experts agree that the Constitution offers some assurances of privacy. The Fourth Amendment, in particular, affirms "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In workplace privacy disputes, employees sometimes argue that the Fourth Amendment should protect them from, for example, having their desks or computers searched by their employers.
However, some U.S. courts have ruled that employers do, in fact, have the right to search their employees' workspaces under certain conditions (for example, when employers have a reasonable suspicion that employees are engaged in criminal or disruptive behavior). Also, while the Fourth Amendment has been interpreted as protecting people against "unreasonable searches and seizures" conducted by the government, its protections usually do not apply to workplace s in the private sector (私营成分).
In addition to the Fourth Amendment, various federal laws have been applied to workplace privacy disputes. For instance, the Omnibus Crime Control and Safe Streets Act (1968) has been interpreted as restricting the ability of employers to "listen in" on their workers' telephone calls. Courts have generally ruled that employers have a limited right to monitor their employees' phone calls (particularly if the employees consent to the monitoring in advance), but the monitoring must cease if it becomes clear that the phone calls are personal and not business-related. Disputes over telephone use, like other workplace privacy issues, are often resolved by courts on a case-by-case basis
The 1986 Electronic Communications Privacy Act (ECPA), meanwhile, governs workplace privacy disputes concerning the monitoring of employees' e-mails. At first glance, the ECPA appears to prohibit employers from intercepting and reading e-mails that are sent or received by employees. However, the law includes several
"exceptions" that enable employers to monitor e-mail under certain circumstances. For example, if an employer actually provides the e-mail system used by the employee, then the employer has a greater degree of freedom to monitor e-mails passing through that system. Also, employers are free to read e-mails if they are intercepted during the "ordinary course of business," or if employees have previously consented to having their e-mails monitored.
In short, the ECPA's exceptions make it fairly simple for employers to jus tify reading private e-mails, particularly if they inform employees in advance that e-mail monitoring will occur. Most legal experts therefore agree that employee e-mails do not enjoy the same degree of legal protection as phone calls. Some privacy advocates attack the apparent discrepancies between telephone and e-mail monitoring protections, and insist that e-mails should enjoy the same level of confidentiality as telephone communications.
In addition to those federal laws, some state laws may apply to workplace privacy disputes. For example, state laws passed in Connecticut and Delaware make it somewhat difficult for employers to intercept employee e-mails. Both states' laws require employers to notify employees in advance that e-mail monitoring may occur, and both laws set financial penalties for employers who violate that requirement.
In addition, some states have passed laws related to corporate "wellness" programs (essentially, programs instituted by employers that aim to improve the health of their workers). Starting in the 1990s, many employers began offering incentives to employees who embraced healthy "lifestyle choices," such as exercising or quitting smoking. More recently, some employers have gone a step further by actually penalizing employees w ho smoke, overeat or engage in other unhealthy behaviors; often, employers will charge such employees higher health insurance fees.
Privacy advocates have protested that such penalties are excessive and constitute an intrusion into the personal lives of employees. Consequently, about 30 states have passed laws that limit the ability of employers to penalize employees for smoking and pursuing other legal activities that are construed as unhealthy. Those laws vary somewhat in scope, however, with some offering only a limited degree of employee protection.
Recent Privacy Controversies in U.S. Workplace s
Legal experts concur that workplace privacy has become an increasingly contentious issue in recent years. Advances in monitoring technology have permitted employers to observe the activities of employees more closely than ever before. Also, the Internet has evolved into a powerful tool that employers can use to investigate the backgrounds and personal lives of workers. Many employees freely post personal information on the Internet, using blogs or social networking Web sites such as MySpace, and are later surprised to discover that the information has been seen by their employers. Often, employers use compromising personal data obtained via the Internet as grounds for disciplining or even firing employees.
Political events and corporate scandals have also encouraged more employee monitoring, experts contend. According to lawyers Lisa J. Sotto and Elisabeth M. McCarthy, the September 11, 2001, terrorist attacks on the U.S. prompted many employers to conduct more thorough background investigations of job applicants. (Such investigations typically include credit checks and drug tests, but can also involve more detailed examinations of an applicant's criminal record and past history in general.) Sotto and McCarthy also point to a corporate scandal involving Enron Corp., the energy giant that filed for bankruptcy in 2001 after years of mismanagement, as a motivating factor for increased monitoring in workplace s.
In some cases, privacy advocates have resisted the trend toward more employee monitoring. For example, in 2001, federal judge Alex Kozinski terminated an initiative to track the Internet use of every employee of the Ninth Circuit Court of Appeals. In a public letter justifying the move, Kozinski wrote, "The proposed [tracking] poli cy tells our 30,000 dedicated employees that we trust them so little that we must monitor all their communications.... How did we get to the point of even considering such a draconian policy?"
Kozinski's action was a bit of an exception, however, since many courts and federal agencies have supported increased workplace monitoring and prioritized employers' rights over those of employees. In one particularly important move, the U.S. Department of Labor issued new guidelines in December 2006 that gave employers the ability to charge workers with unhealthy lifestyles up to 20% more than the average rate for health insurance.
In another setback for workplace privacy advocates, the National Labor Relations Board ruled in December 2007 that employers had the right to prohibit their workers from using company-owned e-mail systems to communicate about union activities. The ruling was condemned as an invasion of workplace privacy by union representatives, but the board defended its decision in a statement declaring that "an employer has a 'basic property right' to regulate and restrict employee use of company property"--including e-mail systems.
Workplace privacy made headlines again in January 2008, when the Times of London and various other news sources reported that computer giant Microsoft Corp. had filed a patent application for a new, highly advanced
employee monitoring system. According to press reports, the system was designed to keep track of an employee's physical state, including alterations in his or her heart rate, body temperature, blood pressure and even facial expressions.
The ostensible purpose of Microsoft's system was to determine whether employees were giving off physical signs of stress and frustration, in which case it would obtain help for them, the Times reported. However,privacy advocates alleged that the system constituted a gross invasion of employee privacy and could easily degenerate into a kind of spying device. Microsoft, for its part, declined to discuss the issue in detail, emphasizing that "claims made in the [patent] application may be modified through the approval process."
The concern over Microsoft's proposed employee monitoring system suggests that workplace privacy remains a hot-button issue for many observers. Under what circums tances is employee monitoring acceptable? Do some monitoring techniques go too far? Should employers be permitted to monitor employees' telephone calls and e-mails, or impose punishments on workers who lead unhealthy lifestyles? Such questions continue to fuel the legal and ethical debate over workplace privacy.
Workplace Privacy Is a Vital Concern, Advocates Say
Supporters of workplace privacy argue that employees have the right to enjoy a reasonable degree of seclusion while performing their jobs. Companies should not violate that seclusion by monitoring their employees too
closely, privacy advocates contend. Also, employers should not be allowed to impose lifestyle changes on their workers through intrusive wellness programs, supporters say. In short, advocates argue that an employee's right
to privacy is more important than corporate interests such as maximizing productivity and profits.
According to privacy advocates, aggressive monitoring techniques--such as reading employees' e-mails--create a climate of suspicion that will ultimately damage the bond that employers share with their workers. "The most important relationship in a business setting is the one between employer and employees," Dean Elmuti and Henry H. Davis write in the magazine Industrial Management. "This relationship should be based on a mutual respect and trust. But how can employees feel trust and respect when they know they are being watched?"
Elmuti and Davis argue that, contrary to employers' intentions, excessive workplace monitoring hurts rather than helps productivity. They suggest less intrusive alternatives to monitoring, such as enrolling employees in workshops that encourage productivity and proper workplace ethics. In addition, Elmuti and Davis contend that companies have to accept the fact that their employees will sometimes use corporate e-mail and telephone systems to conduct private business. "Employees need to intertwine their work and personal lives to survive in the real world," they maintain. Other privacy advocates argue that excessive workplace monitoring can restrict freedom of speech. Companies often crack down on their employees' ability to express personal, political and religious views in a misguided effort to suppress possible controversies and arguments, supporters protest. The effect of those crackdowns is that employees are reluctant to air their views at work, or even in the context of a personal Web page or blog that might
be viewed by their employers.
Bruce Barry, a professor of management and sociology at Vanderbilt University, has openly criticized the lack of free speech in many workplace s. "What I'm concerned about is that when someone does get fired for his blog, and it becomes widely known, it puts a chill on everybody else," he asserts. "It sends a clear message: Watch what you say. Your employer is paying attention to your speech, even...when it doesn't have very much at all to do with your job." Privacy advocates contend that employers should stop restricting freedom of speech, both in the workplace and on the Internet, and start respecting their employees' right to express themselves.
Furthermore, supporters of workplace privacy complain that corporate wellness programs place unfair pressure on employees to change their lifestyles (e.g., by compelling them to lose weight or quit smoking). It is particularly unfair when employers force those workers with allegedly "unhealthy" lifestyles to pay more for health
insurance, privacy advocates say. "What I see happening is that employers increasingly are trying to place the burden of a broken health-care system on their own employees, either financially or medically," protests Harvey A. Schwartz, an attorney based in Massachusetts. (Schwartz is currently representing a former employee of Scotts Miracle-Gro Co. who was fired for violating that company's total ban on smoking.)
Some states have already passed laws that limit the ability of employers to penalize workers for engaging in legal activities such as smoking. However, privacy supporters maintain that more legislation is needed in order to strengthen the rights of employees. "Very few workplace-related laws have been passed since 1986, particularly in the area of privacy," notes Jeremy E. Gruber, legal director of the New Jersey-based National Workrights Institute.
"Some employers have become emboldened over the last few years as a result of a complete lack of legislative oversight [on privacy]," he maintains.
Privacy advocates typically urge the passage of new federal and state laws that would make the more aggressive employee monitoring techniques illegal under most circumstances. Some support the more radical move of amending the Constitution in order to bolster privacy rights in the U.S., but many observers think it is unlikely that a sweeping new privacy amendment will be ratified.
In essence, privacy advocates want companies to reduce or abandon employee monitoring in favor of m ore proactive (and less intrusive) ways of boosting productivity. "It is possible for an employer to go too far [with monitoring]," argue academics Marie A. McKendall and Stephen T. Margulis, who acknowledge the need for some monitoring but add that it is sometimes taken to "risky" excesses. Their statement sums up the position of privacy advocates who argue that employers need to take a step back and respect the personal space of their employees.
Employers' Interests Trump the Right to Privacy, Critics Stress
Critics of workplace privacy argue that employers have a legitimate right to monitor their workers' activities. Close employee monitoring is beneficial, they contend, because it can minimize potentially serious problems such as sexual harassment and the leaking of sensitive corporate data via telephones or the Internet. In short, opponents
of workplace privacy assert that the business interests of employers are frequently more important than
the privacy rights of employees.
Sotto and McCarthy are among those legal experts who contend that workplace privacy should not be an ironclad right. Writing in The Computer & Internet Lawyer, they argue that companies should be permitted to monitor their employees for a variety of reasons, elaborating that
Employers have a legitimate interest in knowing how their employees spend their time at work. Inappropriate email can trigger workplace lawsuits and sexual harassment claims. Cyberslacking and excessive personal telephone calls at work waste employee time, costing employers millions of dollars in lost productivity.
Many critics of workplace privacy are especially concerned about sexual harassment, noting that companies have sometimes been sued for failing to crack down on harassing e-mails and phone calls. Even Elmuti and Davis--two commentators who generally argue in favor of increased workplace privacy--acknowledge that companies need to monitor employees to some extent in order to curb sexual harassment and similar transgressions. "[E]mployees who are sending harassing e-mails, downloading pornography, or in some way making the work environment uncomfortable for others should be terminated," they write. Opponents of workplace privacy contend that active employee monitoring is absolutely essential to uncovering such disruptive activities.
Furthermore, critics of workplace privacy maintain that employers have the right to control health care costs by instituting mandatory wellness programs (including ones that penalize employees for leading unhealthy lifestyles). Wellness programs are clearly beneficial, they maintain, and will probably become commonplace in the future as more employers recognize their positive effects. "Seat belts is a good analogy [to wellness programs]," says attorney Garry Mathiason, an expert on employment law. The use of seat belts in cars was initially option al, but later became mandatory when studies proved that the belts were an effective lifesaving device. "The workplace is following the same path," Mathiason asserts, suggesting that mandatory wellness programs will become standard in much the same way that seat belts did.
Some employees have also spoken out in favor of mandatory wellness programs, crediting those programs with improving their medical status. For example, Indiana resident Teri Sank was financially penalized by her employer in 2006 for having high cholesterol, but after she went on a diet and lowered her cholesterol the penalty was lifted. Sank maintains that her employer's strict policies were ultimately beneficial for her. "I have no hard feelings because it forced me to pay attention to my health," she says.
In addition, critics of workplace privacy assert that it is perfectly reasonable for companies to conduct Internet searches on both job applicants and established employees, in order to investigate their professional backgrounds and private activities. "Online content is public information, and it is fair game for employers to ask about it," maintains Jeffrey A. Joerres, chairman and CEO of Manpower Inc., an employment services company. Joerres suggests that job applicants and employees need to "protect their reputations and think twice about the online personae they are presenting to the world," and refrain from activities such as posting embarrassing "blog entries and party photos." According to Joerres, the burden is on job applicants and employees--not companies--to use the Internet responsibly and ensure that their online activities do not somehow offend or compromise employers.
Finally, critics of workplace privacy stress that companies have a legitimate right to administer drug tests to their employees, or take any similar steps to ensure that the workplace remains a safe environment. "Workers who are involved with illegal drugs...are statistically more likely to be involved in a workplace incident or sustain an injury," asserts Nancy N. Delogu, an attorney who specializes in employment issues. She adds that "the employer is free to regulate employee behavior to maintain workplace safety, and arguably has a duty to do so."
In short, critics of workplace privacy assert that controversial initiatives such as e-mail monitoring, drug testing and mandatory wellness programs all have clear benefits for both employees and employers. Privacy is indeed an important right, but it is often more important for employers to suppress destructive behaviors such as sexual harassment and substance abuse while enhancing productivity, critics conclude.
Future Privacy Controversies Expected
Experts say that the controversy over workplace privacy will endure for the foreseeable future. "E-monitoring and employee workplace privacy are issues that will continue to present questions and problems for some time to come," write academics G. Daryl Nord, Tipton F. McCubbins and Jeretta Horn Nord. "[F]ederal and state legislation governing monitoring and workplace privacy will undoubtedly continue to evolve and be tested in the court systems," they predict. Many other experts concur that future legislation and court cases will be instrumental in resolving the ongoing disputes (and general confusion) over workplace privacy rights.
Mandatory wellness programs are also likely to remain controversial, experts predict, especially if more employers start to adopt them. "Wellness programs are going to continue to grow," says Lewis Maltby of the National Workrights Institute. "The question is whether they're going to be helpful or punitive, and the jury's out on that one," he adds. Maltby's remarks reflect the uncertain legal and ethical status of mandatory wellness programs, and various other initiatives that allegedly infringe on the privacy of employees. For now, it remains to be seen whether U.S. legislators and courts will ultimately strengthen employees' privacy rights, or continue the current trend of favoring the rights of employers instead.