Employers Monitor Employees In The Workplace example essay topic

To what extent should employers monitor employees in the workplace? Is monitoring of employees a result in decreasing productivity and lowering moral? Does employee monitoring violate employees right to privacy? Employers should not monitor employees. Monitoring of employees constricts employees and allows them no freedom and they feel trapped, as if the employer doesn't trust them. Productivity from the employees will steadily decrease from the fear that everything an employee does is being monitored.

Employers that are constantly looking over their employees shoulders makes the employees feel as if "Big Brother" is watching at all times. Computer Monitoring is most often intended to improve efficiency and effectiveness in the workplace, but with good intentions comes the opportunity for abuse by employers and employees alike. An example of both can be found in an article taken from The Futurist. Kristen Bell De Tienne's "Big Brother or Friendly Giant: Computer Monitoring in the 21st Century" is what the future may hold for people choosing to enter the technological field such as commerce, medicine and science. As Computer Monitoring increases there is a concern for the effects it may have in the workplace. According to D eTienne, "By the end of the decade, as many as 30 million people may constantly be monitored in their jobs".

As computer systems become more sophisticated this number will drastically increase. Entering this age of technology we must remember that with more power comes more responsibility by employers and employees. Knowledge can be used as a weapon or as a tool, for instance monitoring abuse can be found in the situation of airline agents. The agents discovered that by keeping customers on hold while finishing their work they could gain an extra five minute break. In the future these evasions of work will be stopped and for this reason "employee's who are accustomed to evading the monitoring system may no longer be able to tolerate it".

These types of employees may find they can no longer survive the added pressure of not being able to evade the system. While monitoring can add pressure to some employees it can also be a relief to others. It is a relief to the employee because it provides information readily at hand. With the use of prompts, acting as reminders to workers of information needed is passed on efficiently allowing employees to do a better job. However, if prompts are used to tell an employee how much time has been wasted or how bad an employee is doing their job, it could cause the opposite effect. Monitoring can have a positive effect on workers by letting the employee access their own information.

In a study by Christopher Early, information about job performance given by a computer is accepted better by employees than a evaluation given by a boss. This can only have positive results for both employers and employees. While at this time monitoring is based on the output of an employee's performance, in the future there will be more freedom for employees to use their own ideas, therefore making monitoring more effective. While monitoring is used mostly as a tool, one example of monitoring as a weapon is when a woman took an extra minute in the bathroom was threatened with losing her job. With this type added stress she suffered a nervous breakdown. The Company insisted that they were not "spying" but were only trying to improve their business.

If monitoring is not used correctly companies will suffer with increases in operating costs because of increased turnover, absenteeism, medical costs, and worker's compensation. Employers who use positive reinforcement with monitoring will guarantee better motivation. Although, most employers will use monitoring in a positive way, legislation may be needed to protect employees from those who abuse the monitoring system. The protection of employees should be the most important issue now and in the future. Legislation has the potential to help employees with issues of better treatment and the right to privacy. Companies that succeed, according to John Scully who is chairman of Apple Computers, will be the ones who learn from the past and from the "me boss and you employee" mentality.

Instead of possessing this mentality employers should strive to make employees feel better about themselves and their jobs. There are many organizations dedicated to employee privacy and employee rights. What is subject to monitoring in the workplace? Virtually every aspect of an employee's computer usage is capable of being monitored. Technology is available that registers every keystroke typed, reports what employees currently have on their screens, the email and WebPages that they store on their hard drive and the amount of time the computer is online and in use along with when it is in use. Employers can see how long it takes employees to extract information for work from the web or whether the employee is using the Internet for personal use.

Email messages that an employee deletes may not be gone for good. The messages that are sent and received can be captured and copied at alternate locations (on other computers or in a specific location on the employee's computer) even after employees think they have deleted them. Even messages that employees mark as private are subject to a search. Employers may unscramble encrypted email messages. The rationale of monitoring company computers is that since the employer owns the computer network and the terminals, he / she is free to use them for monitoring purposes, but monitoring is not only limited to company owned computers.

Telephone and computer usage are the biggest concerns among employees that are being monitored. Employers may monitor telephone calls with clients and customers for quality assurance. Although the telephones are monitored, under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins vs. 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. Voice mail is also subject to monitoring because it is always on an employer's system.

According to an organization dedicated to employee rights and privacy, "The best way to ensure the privacy of your personal calls made at work is to use your mobile phone, a pay phone, or a separate phone designated by your employer for personal calls". Can an employer obtain phone records? Yes, definitely, an employer may obtain a record of all telephone calls dialed from phone extensions which is normally recorded by a device called a pen register. The pen register will allow the employer to see a list of phone numbers dialed by your extension and the length of each call. An employer uses this information to evaluate the amount of time spent by employees with clients. Employees are concerned that the information gathered from the pen register is unfairly used to evaluate their efficiency with clients without consideration of the quality of service the employee is providing.

Computer usage is monitored in many work places regardless of what type of work the company does. Computers are not monitored for the same reason as telephones, for quality assurance, but for several different reasons. Companies want to monitor the internet usage such as web surfing and electronic mail. Although employers monitor the employee's usage to report any abuse of internet privileges and decrease in productivity, there are more reasons that companies monitor computer usage. Employers monitor to maintain a high level of efficiency and productivity as well as for liability purposes in situations such as sexual harassment and employee theft suits. By monitoring an employee's email and internet usage, an employer can keep an eye on whether the employee is wasting time while at work, whether the employee is keeping up with the expected work pace, whether personal problems are affecting an employee's work and see how employees are taking breaks.

Through electronic monitoring employers can also make sure an employee is not stealing company funds and information. According to security managers and IT managers, more and more of computer security is being geared to monitoring people inside a company because of hackers being able to break into a company's data and destroy data or steal critical information, all done through the internet and securing a position inside a company's network. By using the internet, often times, employees will download something from an email or from the internet not relating to work. If this download is infected with any kind of virus it could open the company's network system to those creating the virus and allow an outsider to cause problems within the company's data. Often it's the company's own employees who are wreaking havoc -- snooping into colleagues' personnel files, changing their own records and sometimes being paid by competitors to sneak key marketing and engineering plans our of the office.

Another problem is insider trading. "Insider risk is still the single highest potential loss that a company has", says Dan Woolley, a vice president at Silent Runner, a network security company. "We know historically that there are huge amounts of potential risk associated with insider use of technology. It could be as simple as someone leaving a wireless connection open or if somebody becomes disgruntled or doesn't like another employee, she can do things that will cost the corporation a lot of money. That's where you " ve got to be really careful". Do employees have the right to expect privacy in the workplace?

According to industry experts, no, employees don't have the right to expect privacy in the workplace when it comes to using the company network, company computers, corporate email system, company phone system and everything connected with company information. Some employers state that companies have a requirement to maintain a safe workplace and that it is hard to do. Is shopping online during lunch or sending an e-mail to an old college roommate that dangerous? Many employees have tried to argue that monitoring in the workplace violates their Fourth Amendment Constitutional protection of personal liberty. The Fourth Amendment of the United States Constitution 1791 provides: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". The response by employers has almost universally suggested that the protection of personal liberty is actually justified by monitoring.

Courts have interpreted The Fourth Amendment to require that "legitimate business needs" be met for a search to take place. Supervision must also be necessary in order to control and maintain an efficient operation in the workplace. Monitoring cannot occur in situations where an employee has a reasonable expectation of privacy. Employers have an obligation to notify their employees in some way of their email and Internet surveillance practices. Consent to being monitored is required by employees in some states.

The Electronic Communications Privacy Act of 1986 (hereinafter referred to as "ECPA") directly prohibits the interception of e-mail transmissions. The ECPA prohibits individuals working for a government entity from acting without a proper warrant. Also included in the ECPA, employers must tell employees that they intend to monitor email, internet use, etc. The human resources department must have a policy for the employee to review and sign, giving consent for the monitoring. The ECPA extends the wiretapping laws to electronic records which includes but not limited to email and web browsing. Under the ECPA, the lawfulness of particular monitoring activities will depend heavily upon whether employee's messages are intercepted during transmission or are retrieved from storage on the company's server.

Interceptions of online communications - that is, monitoring of messages in real time as they are transmitted - are subject to the ECPA's most stringent restrictions and are permitted only in limited circumstances. Monitoring of electronic communciations of employees alienates workers, increases their stress levels and destroys company loyalty, all of which are detrimental to overall company performance and customer service. Electronic communications, especially of a private nature, are the property of individuals. The ECPA and several current state laws regarding worker privacy hand too much authority to employers and are extremely antiquated. The Internet and e-mail were barely in existence when the ECPA became law. New laws should be enacted to prohibit electronic monitoring and protect worker privacy.

Employees of government and public entities have a constitutional right to privacy which protects them from most employer monitoring of, or even inquiry about, their off-the-job conduct. For public employers, then, monitoring is largely off-limits. In the private sector, a number of laws prohibit employers from intruding into their employees' lives outside of work. Some state constitutions specifically provide for a right to privacy, which prevents private employers from looking into their employees' off-duty activity. Some states, including California, have laws prohibiting employers from taking any job-related action against a worker based on that worker's lawful conduct off the job. Even in those states that don't provide private workers with a constitutional or statutory right to privacy, it is generally illegal for an employer to intrude unreasonably into the "seclusion" of an employee.

This means that physical areas in which an employee has a reasonable expectation of privacy (the home, for instance) are off-limits to employers, unless there is a very good reason to intrude. And an employer is never allowed to physically enter an employee's home without consent (even when searching for allegedly stolen employer property). The same balancing approach applies to private information. Generally speaking, an employer may not inquire about or otherwise obtain facts about employees' private lives. For example, an employer may not ask an employee about her sex life with her husband. There is, however, special rules created by courts and legislatures for certain types of private, off-duty activities.

Employee use of electronic mail (e-mail) during business hours is a common characteristic of the 21st century American workplace. According to a recent study, over 130 million workers are currently flooding recipients with 2.8 billion e-mail messages each day. Employers provide e-mail services to their employees as an efficient means of facilitating both intra-company communication and communication with the outside client base. E-mail serves to increase the efficiency of today's workplace because it is inexpensive to provide, simple to install and easy to use.

E-mail usage also dramatically decreases the use of office-related, paper-based correspondence. However, despite these efficiencies, this technological advancement is also creating collateral problems concerning issues of employee privacy that today's legal environment appears unprepared to solve. This inadequacy in the law is primarily based on the fact that many employees do not know the extent of their privacy rights regarding their company-provided e-mail accounts. In fact, many employees operate under the false assumption that personal e-mail messages sent from work are protected from their employer's scrutiny. It is interesting to note that employee privacy issues frequently arise in many areas of the work environment other than e-mail monitoring. Employers often monitor employee telephone calls and some companies also record the time each employee spends on bathroom breaks.

One employer even "places a device in employees' chairs to measure worker 'wiggling,' presumably because more wiggling means less working". These attempts at monitoring employee behavior, as silly as some may appear, represent aspects of a legitimate struggle between the employer's ability to conduct its business operations and the employees' privacy rights, between worker efficiency and worker sanity and between technological advancement and current laws operating behind the technological curve. This struggle is serious and its boundaries are rapidly moving into the arena of workplace e-mail. The problem with this advancement is that neither the United States Constitution, the respective state constitutions nor any federal or state statutes provide a clear concept defining the extent of employee privacy rights as they relate to work-related e-mail accounts. The common law, primarily via the tort of interference with seclusion, provides the most common means by which employees are attempting to define their privacy rights.

However, it is often difficult for employees to meet all four of its elements. This iBrief examines the current legal framework encompassing this area and concludes with suggestions both employers and employees can use to protect themselves until the laws dealing with e-mail monitoring become more settled. In the "pre-Internet world, companies tolerated use of office telephones and radios as ways to satisfy employee needs. The standard for when these resources were being abused and cutting into productivity, in what amounts to employee theft of wages, was intentionally left fuzzy". However, with today's businesses constantly attempting to increase employee efficiency, employers are becoming more concerned with improving their employees' hourly productivity and are using the most current technology to achieve these goals. In fact, employers have many legitimate reasons for desiring to monitor their employees' e-mail usage, such as, maintaining the company's professional reputation and image; maintaining employee productivity; preventing and discouraging sexual or other illegal workplace harassment; preventing "cyber stalking" by employees; preventing possible defamation liability; preventing employee disclosure of trade secrets and other confidential information; and avoiding copyright and other intellectual property infringement from employees illegally downloading software, etc.

Simply put, "the extent of employees' privacy rights in the workplace depends on whether they work in the public sector or private sector. Because constitutional rights operate primarily to protect citizens from the government 'state action' is required before a citizen can invoke a constitutional right". Therefore, since most Americans work in the private sector, the United States Constitution and its corresponding Fourth Amendment privacy protection provides little guidance in private sector e-mail monitoring situations. The constitutions of eight states explicitly protect privacy and offer greater protection of the rights of public employees than does the United States Constitution. However, as with the Constitution, these documents protect public employees and the protection does not extend to the private sector. "The one and only notable exception to this rule is the state of California, that has extended its state constitution's protection of privacy to private as well as public employees".

Therefore, both employers and employees must look to current federal or state statutes, or to the common law, in order to gain any clarity concerning the legal issues surrounding the monitoring of employee e-mail. Employees, on the other hand, need to understand that current laws governing workplace e-mail will not protect them from excessive personal use. Most employers seem willing to tolerate some personal e-mail use and will police violations by looking more at employee work product and ability to meet deadlines. In fact, employees will be safer using a personal e-mail account from work, as opposed to an employer-provided account, although employees must remember that excessive personal e-mail may still raise employer scrutiny as it will likely translate into a lower overall performance. However, employees should feel secure that excessive monitoring or other employer abuses of their monitoring privileges will almost certainly violate federal and state statutes and also create tort liability. Employer monitoring of electronic mail constitutes an emerging area of the law that is clearly unsettled at this point in time.

This iBrief demonstrates that privacy rights of non public-sector employees are relatively unprotected by the federal and state constitutions, broad judicial interpretations of enacted privacy legislation favor legitimate employer-monitoring practices, and many of the elements of common law claims are difficult for employees to prove. This current legal situation lies on technological frontier of the struggle between an employer's desire for an efficient workplace and an employee's right to privacy. As the 21st century workplace encounters new technological advances that both increase employee efficiency and create non-work-related distractions, it will be interesting to watch the legal system, through constitutional interpretation, new legislation, and changes in the common law, adapt to meet these new challenges.