Electronic Monitoring and the American Worker’s Right to Privacy

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Thanks to the recent advances in information technology, the internet has now become an integral part of doing business. The internet facilitates interdepartmental communication and many other business operations, but at the same time, it has also brought with it the threat of inappropriate electronic monitoring. Human resources is most frequently the department responsible for handling this difficult topic, and company policies have come to be designed to cover the use of the internet in the same as they would cover sexual harassment, sick days, or vacations. Incorporating the internet into company policies as a standard practice seems to be the best way of heading trouble off at the pass. However, the rules about employer’s rights to monitor employees’ use of the internet in the workplace are somewhat murky and not as well defined as other policies in the workplace. Through the use of advanced technology, employers can now continuously monitor employees’ actions without those employees even knowing they are being “watched.” Given this covert surveillance, an obvious topic for research is how well aware employees are of the degree and types of monitoring that occur in their workplace. Though this research question carries risk in the fact that employers may not be willing to disclose their surveillance techniques, even if that did prove to be the case, knowledge on the feasibility of performing this type of study will have been added to the sociopolitical field of American workers’ rights to privacy while on the clock.

Literature Review

Proponents of the electronic monitoring of employees regard it as an efficient means to manage a modern enterprise, ensuring quality customer service and increasing productivity. While they recognize that abuses may occur, they also believe that these can be avoided by a participatory introduction of the new technology which allows the workers to have some input into the design and implementation of the monitoring systems. In addition, there are rights that employers have as well, as Cozzetto and Pedeliski (1997) explained: “Claims of privacy abuse come against an employer's prerogatives in establishing workplace standards, and ensuring the efficiency of administration” (p. 515). For this point of view, the story is not one of employees as victims to an evil corporate entity, but rather, of complex relationships between employers and employees. Pivec and Brinkerhoff (1999) might agree, given their detailed assessment of the issue of email privacy in particular. Indeed, though using email for personal reasons on company time is a problem, the question of whether this justifies the subsequent invasion of privacy is riddled with contradictions. However, there are those who feel just as strongly that the situation is in fact starkly simple.

Opponents of monitoring feel that some companies’ internet policies include language authorizing them to perform the surveillance in secret and that this is therefore a violation of employees’ privacy rights. The issue has roused debate not only in political spheres, but in academic discussions as well even as far back as the infancy of the internet as we know it today. Levy (1994) made the ironic comparison of the current situation to the panopticon—an eighteenth-century proposed set-up for a prison whereby the inmates could be watched at all times from a central location and a term which has since come to mean any sort of excessive and intrusive monitoring. That this type of comparison is still made shows that there is something about the idea of being continuously watched that people find disturbing. Electronic monitoring seems to touch on deep, core fears humans carry around, and to this extent, the proponent of monitoring might well criticize the outrage over monitoring as mere paranoia.

Most of the time employers have legitimate concerns that cause them to monitor employee’s activities on the internet. From security breaches to hacking, from viruses to reduced productivity, the threats that might strike a company argue for the benefits of proper electronic surveillance to the extent that this might outweigh employees concerns. According to the American Management Association (AMA; 2006), “To motivate compliance with rules and policies, more than one fourth of employers have fired workers for misusing email and nearly one third have fired employees for misusing the internet in general” (p. 1). These are astounding numbers, for the consequences of whatever a company deems “misuse” seem not to be mere reprimands, but full-on dismissals. If, indeed, employees’ rights are being violated, the companies have then wrongfully fired many and might even be liable for this. To make matters worse, AMA also found that monitoring seems to extend outside what happens in the workplace, with twelve percent of companies monitoring blogs and ten percent monitoring social media to see what employees were saying about the company during their free time. Though this information is ostensibly public, normally, people are not envisioning their employers as being the ones who read it. Apparently, if the statistics above are to be believed, their naïveté could be costing them their jobs.

Employee surveillance is not a new concept; employers have always been allowed to intrude upon their employees’ privacy, from drug testing to background checks. However, electronic surveillance provides companies with a new tool that allows them to monitor employees with unprecedented efficiency while at the same time minimizing their liability. Hartman and Bucci (1999) noted that the risk to companies when employees misuse email in ways that ultimately prove destructive, such as by sharing trade secrets, ought to outweigh the concerns about privacy, though they do note these concerns are legitimate as well. The stakes seem to be simply too high to let employees be in constant communication with the outside world without at least some sort of monitoring. However, the literature continues to go back and forth on the issue.

Just as legitimate as employer concerns are those of privacy advocates on behalf of employees who are being monitored. For example, Schulman (1998) warns of a “Big Brother is watching” culture arising, gradually dulling workers’ emotional responses to the prospect of being continually monitored until objection is completely negated. Indeed, it can be anecdotally noted by many that the younger an individual is, the less concerned that person is likely to be about issues of privacy and the internet. Mishra and Crampton (1998), too, worried that the changes then taking place might ultimately be for the worst, though in a rather less dramatic fashion. That so many scholars have found this a worthy topic implies that there is plenty more to be done. Many broad strokes have been made in painting the picture of employee monitoring in the American business world today. A useful piece of the puzzle still markedly absent from the literature is the case study.

Methodology

The proposed methodology is a case study of a local business, interviewing a target of fifty employees at varying levels in the company. These interviews shall be brief and somewhat freeform in nature, choosing from a wide variety of available subtopics in the area of electronic monitoring. Results will be subjective in nature and will not receive any sort of statistical treatment due to this fact. Ethical concerns and informed consent will be dealt with according to standard research protocols. To demonstrate the full breadth of concepts from which the interviews might pull, a broader discussion of the subject material is in order. Many of the topics more related to employees’ views have already been covered, but there is much that remains unknown about managers’ points of view.

As for the component of the interviews that involves the managers of the company, the questions will focus around determining whether they agree with the idea that employee monitoring is only smart business. After all, employee use of company computer resources, including email, the internet, and software, can open any organization to electronic risks. Security concerns regarding viruses, spam, deliberate and targeted intrusions into the company's network, and leaks of confidential information suggest that employers find ways to monitor their employees’ activities to avoid potential setback. Whether these are the most relevant concerns for employers can be unveiled through a careful choice of questions. Though it would be nice to determine during this process what type of monitoring, if any, actually does take place, this may not be information those in positions of power at the company are willing to give. Regardless, the knowledge of attitudes toward monitoring and the degree of agreement with the motives behind such activities will constitute a valuable contribution toward the understanding of this subject matter.

There are other possible motives for monitoring as well, so interview questions must also include references to the notion that monitoring is less about high-level risks and more about ensuring employee productivity. Electronic surveillance allows employer to monitor employees in a very efficient manner. It could be said that an employer has legitimate reasons to monitor and record all activities that employees go about as they conduct business matters. Employees may need to put themselves in the employer’s shoes, which is precisely the connection the first portion of the proposed interviews aims to explore. Employees know they are hired to work, and it is bad for business if they waste time on the internet during work hours rather than take care of customers. However, there are also aspects to electronic monitoring in which the employer-employee relationship need not be adversarial; in some cases, electronic surveillance protects everyone involved.

Electronic surveillance is necessary sometimes to prevent legal liabilities associated with harassment or offensive communication in the workplace. In such cases, the increased documentation made possible by the information age can help ensure that facts are accurate so that any punitive measures taken are appropriate. There is a range of legitimate concerns that justify employer monitoring of employee internet usage, such as legal compliance. Recording telemarketing activities gives both the company and the consumer some degree of legal protection, and the act of electronic recording and storage, in this case, is considered part of a company’s due diligence to ensure against litigation. All activities performed on a company's office equipment become company property, including personal emails and telephone conversations, and therefore can be used to minimize legal liabilities for the employer and the employee alike. In this case study, the interviews will reveal the extent to which both parties are aware of this aspect of monitoring.

There are legal implications to monitoring as well, and this is another are that is rife with opportunity for interview questions. Opponents to electronic monitoring in the workplace have been primarily concerned with the abuses of employers and the subsequent effects on workers’ privacy, performance, and health. In many ways, only business interests truly understand the issues that are stake and their ability to control the work process. The emergence and development of workplace surveillance practices have become a challenge for our traditional understanding and conceptualization of the relationship between law and technology. In the process of making a case for laws that reform the area of electronic monitoring, it has been commonly assumed that the absence of legislation constitutes a legal vacuum. The traditional norms of employment law not only permit electronic workplace surveillance but actually assume the legitimacy of all forms of monitoring that an employer might conduct. By omitting the relationship between the employment contract and the actual monitoring that takes place, many have condemned electronic surveillance without reference to the legal and political connections it has to the contract (Johnston & Cheng, 2002). Employers that correctly announce to their employees that they will use electronic equipment to monitor performance at work are following the law. These employers are also preventing costly lawsuits when they announce to their employees their intent for recording. It should be the case that electronic monitoring systems are more likely to find acceptance with employees if the monitoring practices are regarded as relevant to their work and if the system is considered to be procedurally just. Whether employees and employers actually agree on this matter will be investigated throughout the course of this study.

Computers and internet access give employees powerful tools to carry out their jobs but at the same time offer constant temptations to avoid work. This reality leaves employers and employees to sort out the potential risks and benefits of technology in contract agreements and terms of employment when it comes to privacy rights and electronic monitoring. The law as it currently stands provides little protection to the monitored worker. Some proposed legislation only addresses a limited number of important concerns of workers but fails to address power dynamics in the workplace. The parameters of discussion have been determined by business and continue to revolve primarily around the most efficient means of running the enterprise. Stress, inter-worker competition, and performance evaluations are seen as the most important issues by business because of their ultimately detrimental effect on productivity and the smooth operation of the business. Management’s primary concerns tend to lie in devising ever more efficient methods of implementing and administering electronic surveillance and monitoring systems (Levy, 1995). Though this viewpoint has been put forth by others, it remains to be tested against the actual perspectives of employers. Through the interview process, these somewhat Machiavellian assumptions about the nature of managers can be questioned and their accuracy can be verified or disproven.

Another possible area for interview questions, if time allows, is to explore the connection between electronic monitoring and worker stress, if any. Results gathered from monitoring are used to determine pay and promotion. Electronic monitoring has becomes the means by which employers can inexpensively assert their control in the workplace yet still allow a measure of employee participation and input. Increased productivity and improved customer service may be the professed goals of employers but the subtext is an attempt to reassert their traditional prerogatives in the workplace. As Levy (1995) put it, attempts to slow employer excess therefore fail to address the true concern of the difference in power between labor and capital. Electronic monitoring produces pressure to perform. The range of stressful working conditions related to monitoring might include a heavy workload, being required to perform repetitive tasks, social isolation, and fear of job loss. The balance of power between employer and employee is less equitable than might be desired. One approach to remedying this is apparent in past legislative attempts to address the issue, such as the Privacy for Consumers and Workers Act (1994), which specified that, “[E]mployers must provide prior written notice to employees describing the forms of monitoring to be used; the personal data to be collected; times that monitoring occurs; the use to be made of data collected; [and] interpretation of collected information . . . ” (p. 1). However, the act has since died after being referred to committee, and there seems to have been little to no renewed interest in pursuing legal restraint to employers’ power in this regard. Perhaps the public simply does not care very much about this issue; one possible result of this study, after all, would be that employees are not concerned about monitoring and consider it normal.

There are no federal or state laws protecting employees. In most instances, employers may monitor calls with clients or customers for reasons of quality control. An important exception is made for personal calls; under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. However, when employees are told not to make personal calls from specified business phones, the employee then takes the risk that calls on those phones may be monitored. It is not clear, however, to what extent employees know which phones are monitored and which are not; this, too, could be valuable information to gain from the interviews. The best way to ensure the privacy of personal calls made at work is to use one’s personal mobile phone, a pay phone, or a separate phone designated by employer for personal calls. Conversations between co-workers are subject to monitoring by employer in the same way that conversations with clients or customers are as long as employees are using electronic devices provide by the employer for work purposes. Employers can use computer software that enables them to see what is on the screen or stored in the employees’ computer terminals and hard disks. Employers can monitor internet usage such as surfing the web and using email. Since the employer owns the computer network and the terminals, he or she is free to use them to monitor employees. Employees are given some protection from computer and other forms of electronic monitoring under certain circumstances, such as in the case of union contracts that limit the employer’s right to monitor. In addition, public sector employees may have some minimal rights under the United States Constitution—in particular, under the Fourth Amendment, which safeguards against unreasonable search and seizure. In any case, it is important for employees to understand the company’s policy and guidelines about computer usage and avoid putting themselves and their personal information at risk of being monitored by their employers.

Employee surveillance is nothing new and electronic monitoring is intrinsically no more invasive than traditional supervision. The issue of employee monitoring has emerged recently because of concerns for employee privacy rights in the workplace. There are no federal or state laws that protect privacy on the job; advancements in technology and the lack of legislation protecting employees have all sparked concern for employee privacy. Despite this, monitoring is still basically unregulated. However, there are two sides to every coin, so the debate continues.

Results

The results of the over fifty interviews performed were interestingly mixed, with about one third of the interviewed participants surprisingly expressing positive views of monitoring, saying that it was a reason not to “slack off.” In addition, many recognized that as a performance evaluation tool, electronic monitoring offers benefits to employees because it provides an unbiased method of performance evaluation. Electronically generated information offers uniform and accurate feedback on performance and prevents the interference of managers’ feelings or opinions in an employee review, and both employees and employers seemed to have awareness of this fact. Computer-based feedback can have a greater impact on an employee’s performance if he or she receives it directly from the system, and managers felt this provided value. Also on the employer end, employee monitoring was seen as an indispensable means not only to enhance employee productivity but also to assure quality. Monitoring gives managers a clear picture of who is a hard worker and who is unproductive, so objective feedback on employee performance and productivity can be used when conducting performance appraisals, determining raises and promotions, evaluating training effectiveness, or for deciding disciplinary action that may be necessary. Correspondingly, it seemed to be the case that the higher a person’s status in the company was, the more likely that person was to agree that monitoring was a positive force.

Discussion

Opponents of electronic monitoring still disagree that monitoring can increase productivity and argue against it because they feel electronic monitoring may increase stress on employees and become detrimental because it can create adverse working conditions that may, in the long run, defeat the purpose of implementing such systems. Some experts believe that working under surveillance provides a source of worry for workers. Monitoring can discourage workers from working toward team and organizational goals or from helping coworkers achieve organizational goals. However, both sides of the argument were well-represented in the research performed here. Looking at these two sides, it seems that electronic monitoring, if properly implemented, can prove beneficial for both employers and employees. In any case, employers who reserve the right to monitor should ensure that the monitoring serves a legitimate purpose and follows clear procedures to protect their workers’ personal lives from unnecessary prying by involving employees in the creation of the monitoring policy. Both parties should try to walk in each other’s shoes and be mindful of each other’s interests.

References

American Management Association. (2007). Electronic monitoring and surveillance survey. AMA/Policy Institute Research, 2.

Cozzetto, D. A., & Pedeliski, T. B. (1997). Privacy and the workplace: Technology and public employment. Public Personnel Management, 26(4), 515¬-527.

Hartman, L. P., & Bucci, G. (1999). The economic and ethical implications of new technology on privacy in the workplace. Business and Society Review, 102(1), 1-24.

Johnston, A., & Cheng, M. (2002, November). Electronic surveillance in the workplace: Concerns for employees and challenges for privacy advocates. Paper delivered at the International Conference on Personal Data Protection. Seoul, South Korea.

Levy, M. (1994). Electronic monitoring in the workplace: Power through the panopticon [White paper]. New York: New York University.

Mishra, J. M., & Crampton, S. M. (1998). Employee monitoring: Privacy in the workplace? SAM Advanced Management Journal, 63, 4-14.

Pivec, M. E., & Brinkerhoff, S. (1999). E-mail in the workplace: Limitations on privacy. Human Rights, 26, 22.

Privacy for Consumers and Workers Act, S. 984, 103rd Cong. (1994).

Schulman, M. (1998). Little brother is watching you. Business and Society Review, 100(1), 65-69.