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Privacy in the Workplace


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In a generation that seems to thrive on voyeuristic pleasures, privacy has become a hotbed issue. We watch the very private lives of celebrities and “real” people unfold on television, we pour out our personal thoughts in private online diaries which can only be shared with a few million people, we videotape human foibles and post them on websites to share with the world. One would assume that the American society is as comfortable with a lack of privacy as the French are with nude bathing! Yet, every society has to draw the line somewhere. It seems that while we are comfortable sharing the private details of our lives for entertainment, we are not comfortable with having our workplace activities under a microscope.

The conflict over privacy rights has also extended to the workplace. It is understandable as work is where we spend the majority of our day and many think of it as a safe haven. We can accept being monitored for the sake of safety but are far more uncomfortable feeling that we work for “big brother.”

The American Management Association conducted a survey of employers in 2005. The survey found that three-fourths of employers monitor their employees' web site visits in order to prevent inappropriate surfing, while 65% use software to block connections to web sites deemed off limits for employees. Approximately one third track keystrokes and time spent at the keyboard. Just over half of employers review and retain electronic mail messages.

Greater than 80% of employers disclose their monitoring practices to employees. The survey also found that most employers have established policies governing Internet use, including e-mail use (84%) and personal Internet use (81%).

Employers have grown skittish about what employees are doing in the workplace and with good reason. Beyond the employee performance aspect, employers face an ever widening legal minefield and ultimately can be held responsible for what their employees do, say and write in the workplace. Employers can be held liable for email communications (which are discoverable in lawsuits); verbal communications (i.e. harassment, threats) and much more. Organizations have turned to monitoring as a way of reducing their risk of being sued.

However, there are still unanswered questions on both sides about this right to privacy in the workplace. Employers and employees may not fully understand what they can legally monitor and what is off limits.

Employers can monitor telephone calls with clients and/or customers for quality control. State laws vary on this issue. In example, in California, the law requires that parties to the call be informed that the conversation is being recorded or monitored by either a beep tone on the phone or a recorded message. Many businesses have opted to alert customers via the recorded message. Federal law, however, which regulates phone calls with persons outside the state, does allow unannounced monitoring for business-related calls. 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. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) 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.

There are obviously times when employees must make personal calls from the workplace. Employees should make those calls from a cellular phone, pay phone or a phone designated by the employer for personal calls to ensure privacy.

Employers can also monitor employees’ computer terminals. Internet use, electronic mail and even keystrokes can be monitored. Employers own the equipment and network so they are free to monitor employees’ use. Employees may have some protection from computer and other forms of electronic monitoring under certain circumstances. Union contracts, for example, may limit the employer's right to monitor. Also, public sector employees may have some minimal rights under the United States Constitution, in particular the Fourth Amendment which safeguards against unreasonable search and seizure.

There have been a number of workplace privacy court cases that were decided in the employer’s favor. In Smyth v Pillsbury, an employee was fired over email messages sent from his home computer to his supervisor. Pillsbury deemed that the messages were inappropriate and unprofessional. The termination was upheld even though Pillsbury allowed personal e-mail and had ensured employees that all electronic communications were privileged and confidential.

As the legal liabilities for employers increase, it is unlikely that we will see a reversal of the monitoring trend. Employees should assume that what they do at work is never private and limit their communications in the workplace to business only.

About the Author

Richard A. Hall is founder and President/CEO of LexTech, Inc., a legal information consulting company. Mr. Hall has a unique breadth of experience which has enabled him to meld technology and sophisticated statistical analysis to produce a technology driven analytical model of the practice of law. As a busy civil trial attorney, he was responsible for the design and implementation of a LAN based litigation database and fully automated document production system for a mid-sized civil defense firm. He developed a task based billing model built on extensive statistical analysis of hundreds of litigated civil matters. In 1994, Mr. Hall invented linguistic modeling software which automatically reads, applies budget codes, budget codes and analyzes legal bill content. He also served as California Director and lecturer for a nationwide bar review. Mr. Hall continues to practice law and perform pro bono services for several Northern California judicial districts.

LexTech provides corporate and public sector legal managers a cohesive suite of tools, professional services, and educational offerings to Manage the Business of Law.

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Article Published/Sorted/Amended on Scopulus 2006-08-28 21:35:11 in Employee Articles

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