July 18, 2005
Many Americans take their right to privacy for granted. But most don’t realize that this right doesn’t extend into the place where they spend most of their waking hours: their workplace.
“There is very little, if any, privacy in the workplace, particularly in the private sector,” says Jeremy Gruber, legal director of the National Workrights Institute, an advocacy group for human rights in the workplace. “Privacy is one of the most-violated principles in the American workplace. People are aware to a degree how much monitoring goes on in the workplace, but most individuals are unaware of how pervasive the lack of privacy is.”
Monitoring employees electronically and in other ways is a growing part of the way American companies do business, according to the 2005 Electronic Monitoring and Surveillance Survey, conducted by the American Management Association and the Epolicy Institute. According to the survey, which was released in May 2005, 76 percent of employers monitor workers’ Web connections, while 50 percent store and monitor employees’ computer files.
Other types of monitoring at work can include:
“There are three main reasons employers monitor employees: legal liability issues, employee productivity and security breaches,” says Nancy Flynn, executive director of the ePolicy Institute. “For example, e-mail creates a written business record, and employers are becoming increasingly aware that e-mail and Internet activity is the electronic equivalent of DNA evidence. If a company is sued or investigated by a regulatory agency, you can take it to the bank that e-mail will be investigated and subpoenaed.”
Employers are most concerned about employee use of company computers. This includes e-mail, instant messaging, Web surfing and files stored on company computers. According to the Electronic Monitoring Survey, 26 percent of employers who participated in the survey have fired workers for workplace offenses related to the Internet, while 25 percent of employers have fired employees for misuse of e-mail. While many employers monitor employees’ Web surfing, a slightly smaller number — 65 percent of those surveyed — actually use software to block workers’ access to inappropriate Web sites.
Many employers are concerned about their employees’ connecting to inappropriate Web sites, such as those with pornographic content or that allow employees to gamble online, Flynn says. Productivity suffers when employees spend too much time online surfing, attending to personal business or e-mailing friends. Employers also worry about workers’ disclosing trade secrets or proprietary information over the Internet.
According to a 2004 ePolicy survey, instant messaging is one of the least-monitored computer activities — only 6 percent of employers surveyed at that time retained or archived instant messages, while 58 percent of employees surveyed use instant messaging for personal online conversations. “Most instant messaging takes place via free software tools that employees download and thus is outside employer firewalls,” says Flynn. “We tell employers that if your employees are doing this, you are handing information over to outsiders.”
Keyboard keystroke monitoring can track key words typed on a keyboard and can also track how fast employees are typing. “There is a problem with worker monitoring when it leads to an oppressive work environment,” says Jay Stanley, communications director for the American Civil Liberties Union Technology and Liberty Project. “That can happen when employers can monitor things like keystrokes.”
In such a situation, Stanley notes, employees can feel subtle or overt pressure to speed up the pace of their work, leading to morale problems.
Phone and video surveillance
Phone surveillance includes:
According to the 2005 surveillance survey, 57 percent of employers surveyed block unauthorized phone numbers, and 51 percent monitor the amount of time spent on the phone and the numbers dialed. More than 80 percent of the employers who monitor these activities notify employees about what they are doing.
Employers use video surveillance in an effort to prevent theft, violence and sabotage, Flynn says. The survey states that 51 percent of employers surveyed use video monitoring. Of those, 85 percent notify workers of the practice. Video surveillance cameras may be installed in many areas of the workplace, including locker rooms, leading to a lack of privacy.
Other types of monitoring
Besides computer, phone and video monitoring, new and older technologies give employees a wide variety of options to keep tabs on their employees. These other types of surveillance include:
Satellite technology. Satellite technology is rapidly evolving, and employers now have the ability to track employees through assisted global positioning or global positioning systems satellite using company cars, cell phones, pagers and smart cards. However, few of the employers surveyed are actually using these technologies — only 8 percent are tracking company cars, 5 percent track company cell phones and 8 percent track employee ID/Smartcards.
Gruber notes that GPS gives employers the ability to track workers both on and off the job, and he recommends that employees use their own cell phones, handheld devices, computers and pagers while not working if they don’t want to be monitored.
Drug testing. Some employers randomly test employees for drug use. Such tests can be the ultimate invasion of privacy as an employer may require an employee to provide a urine sample with a witness present, according to Gruber, who also notes that the courts have supported drug testing of private-sector employees in virtually all cases. “The problem with drug testing is that it doesn’t determine whether a person is actually intoxicated on the job,” he says. “It only indicates whether someone has been intoxicated in the past.” In addition, these tests have an error rate and do give a certain percentage of false positives, leaving workers who don’t do drugs at risk for discipline or termination even though they haven’t done anything wrong. Gruber believes that employers should train supervisors to be aware of the signs of intoxication or drug use and provide employee assistance programs to help workers with addictions recover.
Flynn believes most employers are upfront about monitoring and that those with the best policies will tell employees what to expect in terms of monitoring. According to the 2005 Electronic Monitoring Survey, 80 percent to 89 percent of employers surveyed are notifying employees regarding computer-related monitoring.
Beth Givens, executive director of the Privacy Rights Clearinghouse, urges employees to pay attention to their employers’ policies. “Employers should notify employees that they are being monitored, what type of monitoring is being done, and how data from monitoring will be used,” she says. “Also, workers should know what recourse they do have if the employer takes a negative or adverse action against them as a result of information obtained during monitoring.”
Flynn agrees that policies should be very specific and that employers should tell employees what is permissible in terms of personal use of e-mail, the Internet and company phones. “Your policy could say that employees are allowed to do these things for, say, 30 minutes a day or during lunch and on breaks,” she says.
“A lot of companies will say that a limited amount of appropriate personal e-mail is allowed, but a limited amount is subject to interpretation. It might mean 15 minutes to one person and a few hours to someone else,” she says. The ePolicy Institute also believes that monitoring should apply to all employees, including top executives.
Despite the fact that many employers notify employees about monitoring, the law doesn’t require it, and many employers aren’t specific about the type of monitoring done, Gruber says. Employers can also expand their monitoring programs without notifying employees and may just insert a blanket statement in their policy manual telling employees that they reserve the right to monitor, but not what types of monitoring are conducted.
What you can do
Givens advises workers to be careful in their workplace activities to avoid problems with monitoring devices and programs. “Don’t engage in activities that are contrary to your company’s policies,” she says. “This may include surfing the Web for nonwork-related reasons. Be careful about who you share company information with online and over the phone.”
With the workday stretching into employees’ private lives and time, employers should be flexible about giving employees time for some personal communications at work, she says. “If you need to make a doctor’s appointment or talk to your child’s teacher, those activities may need to take place during the workday,” she adds.
Gruber is concerned that even if employers are flexible about personal communications and activities at work, many of these communications are monitored, breaching employee privacy. “Monitoring is so pervasive that it rarely differentiates between business and personal information, so quite a bit of personal information can be determined about employees through monitoring,” he says. “Even though technology exists that allows employers to be more specific in their monitoring to exclude personal information, they ignore it.”
The ACLU’s Stanley agrees.
“Many companies are hungry for more data and more information about their employees,” he says. “But employers may need to re-examine the extent to which it is necessary to monitor their employees. This reflexive jump to adopt new technologies can give employers a feeling of control, but that can be illusory, especially if it denigrates the morale and trust in the workplace.”
While private-sector employees have virtually no privacy rights, government employees do have established privacy rights and many union employees have more rights, not explicitly to privacy but to contest grounds for discipline or termination, Gruber says. He notes that virtually all private-sector employees can be terminated at will, for any or all reasons.