Employee privacy issues have surged to the forefront of the business press in recent years, spurred by the changing workplace dynamics and a litigation-conscious business environment. Observers say that advances in telecommunication, coupled with heightened concerns about vulnerability to litigation, have exacerbated management concerns about monitoring employee behavior. Indeed, employee privacy is already fairly restricted in many respects in many large organizations. Studies indicate that small business owners have increased their monitoring practices as well, and experts expect that trend to continue in the near future.  But analysts note that the close owner-employee interaction that typifies many small business enterprises often makes monitoring a more delicate issue that it might be in a larger, more impersonal environment.  

Fundamentals of Workplace Privacy

While stipulations on employee privacy patterns vary from state to state, legal experts state that private sector employees have the rights than they commonly believe.  There is no general federal or state law creating or protecting a zone of privacy in the workplace. The central legal issue in the area of workplace privacy boils down to one question “Did the employer, by what it did or failed to do, create a reasonable expectation of privacy by the employee? If the answer is yes, and the employer did not meet the expectation, then it may be held liable for invasion of privacy. 

Delineation of employer and employee rights in a variety of areas

Searches and Seizures: An employer has the right to inspect personal belongings (bags, purses, briefcases, cars, lockers, desks, etc.), except when the employer has created a reasonable expectation of privacy. These expectations can be raised if the employee is given a key to a desk, or if the employer has disseminated a written policy explicitly stating that it will not make such inspections. 

Monitoring Computer, E-mail, Internet, and Fax Use

Businesses have some significant rights in this regard, since they own the equipment. But if these resources are knowingly made available for private employee use, then a reasonable expectation of privacy has been created and personal data placed and maintained on that equipment can be withheld from the employer.

Monitoring Telephone Calls: Companies are allowed to monitor calls to make sure they are business-related and to record them for training purposes.

Surveillance and Investigation: Many surveillance methods (cameras, ID checkpoints, etc.) are legal, as are investigations of employees, provided they are reasonable and undertaken for work-related purposes.

Drug Testing: These policies have been validated by the courts, although criticisms of the practice remain intense in some quarters.  Drug testing is a popular measure in many industries, and it is practiced by perhaps 70 percent of large companies. Small business, however, are less likely to embrace this technology because of expense, nature of business activity, and concerns about workforce reaction.

Countless studies and reports indicate that monitoring of employee behavior, both in and out of the workplace, has undergone a dramatic increase in recent years.  Such monitoring may range from checking on the business relevance of Internet sites that an employee visits to examinations of an employee’s locker or cubicle to see if the person is stealing equipment or information from the company. 

The element of company monitoring has been a particularly sore spot for employees and civil liberties advocates alike. They note that even if one were to set aside the ethical issues of such monitoring for the moment, errors in monitoring practice can have devastating repercussions on workers. Careers may be damaged when investigators overreach, when mistakes are made, or when managers are too aggressive in enforcing company rules. 

Nonetheless, factors such as increased litigation have pushed many companies into increasingly proactive investigations into the activities of current and prospective employees, both in and out of the office.  Rising medical expenses have also have encouraged many businesses to check into medical history of prospective employees especially if the business is one that self-insures. Technology now makes it possible to store medical records in electronic form in database, providing an easily accessible cradle-to-grave look at an individual’s medical history. Finally, amazing advances in computer and other technological capabilities have dramatically increased the ability of employers to monitor the activities of workers. Technological advances have provided employers with the ability to access information on current and potential employees to an unprecedented degree.  Technology, particularly new software that can track and record everything workers do on their computers, is making it easier to peek over a worker’s shoulder.  

Of course, the same technology has also complicated the privacy issue of many business owners and managers because it has enabled employers to gain access to  a wide variety of non-business related materials from pornography  to information on civil war reenactments or other hobbies, from their office desks.

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Bernard Taiwo

I am Management strategist, Editor and Publisher.

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