While the headlines are filled with stories regarding the unchecked growth of a surveillance state and its effect on the traditional debate of what is the right balance between the states duty to provide security and the people’s right to enjoy their privacy; a relevant, timely and no less important issue is what are the parameters, if any, that control, or should control private intrusions into another person’s right to privacy. One of the most common area where this issue is confronted is the workplace. In other words, what policies, laws or guidelines regulate employee monitoring by their employers? Moreover, if there are no current means of regulation, should there be? Lastly, if such actions should be regulated, what means can be established now for a future of regulation. Just as with the question of state surveillance, the issue of employee monitoring is an important one. It is an important question, not only because with the growth of information technology, employers are both: more likely to want to monitor their employees, and have the means to do it secretly and comprehensively. That is to say, on the one hand, that employers now have the mean to look deeper and longer into the lives of the employees. On the other hand, employees are providing more information about themselves for employers to monitor.
It is important to note that employee monitoring is not new. In fact, employers have been monitoring their employees for at least 100 years. For example, in the early 1900s, Ford Motor Company established a special department to monitor employees who were in line for a bonus (Loizides, 2004). Ford’s monitoring not only included worktime surveillance but also include off-work monitoring to see if they were involved in any activities that Ford’s leadership thought was unbecoming of company ethics and principles such as drinking or gambling (Loizides, 2004). To be sure, since those early days, companies and organizations have repeatedly used the same or similar ground to monitor their employees, namely, they needed to do so in order to protect themselves from trouble. Trouble here referring to a wide range of activities such as anything that the company, as with Ford, thought was bad or activities that were actually against the law such as employee theft or other employee misconduct such as drug use, or office harassment and discrimination. Perhaps, most importantly, companies claim the monitoring is necessary in order to ensure that employees are actually working and not wasting the companies time, money, or resources. In others words, employers monitor to improve productivity. Companies often further substantiate the need to monitor employees with the argument that if they do not they, may eventually be held liable for any misconduct of an employee that can be imputed to the business. The only difference, between employee monitoring in the past and employer monitoring know is ability. In other words, information technology gives an employer unquestionable ability to monitor an employee every move, both on and offline, while they are on company grounds or while using company property or networks remotely. Moreover, unlike employee monitoring in the past that was limited to the stamina and skill of a human, nowadays, employee monitoring can be constant yet non-intrusive.
An example of how employee monitoring can be implemented is illustrative. First, RFID tags in an employee ID card could alert employers on the time an employee enters or leaves the office. In addition, sensors in the company could be used to provide employers with information as to the exact location, such as at their desk or in the coffee room, of an employee while they are on the company grounds. Second, login requirements for accessing a computer terminal can provide employers with information as to what computer an employee is using (PRC, 2016). If the employer knows what computer a specific employee is using, they can then learn what sites an employee is accessing and whether or not an employee is upload, downloading or copying files. Third, if the employee using the companies e-mail client, employers can read what e-mails they send and receive (PRC, 2016). Moreover, they see if or when an official company e-mail sent to an employee is read or deleted without being read. Third, if the employee uses a company smartphone, tablet or laptop, outside of work, the employer has similar abilities to learn where and when an employee is accessing the device, as well as what they are accessing, such as what sites they are surfing, on the internet. Lastly, just as the Ford Motor Company sent staff to monitor the actions of employees when they were off work, companies can now do the same with little to know effort. For instance, the facts that: most people now regularly use social media, and most social media companies now require members to use their own names, or at least not an alias, it is quite easy for a company to monitor what an employee does at home or away from work. Such monitoring can be as simple as reading their personal blog, Tumblr or Instagram or as secretive as “friending” them on Facebook just to see what they are posting.
The touchstone of the debate between security and privacy is the Constitution and the laws which guarantee that every citizen has a right against an “unreasonable search or seizure” (Solve et al., 2005). The question for employee monitoring is whether or not there is a similar baseline legal standard. Unfortunately, for private industry there is not. To be sure, the United States Supreme Court has not only held that employees in private industry have a limited “reasonable expectation to privacy” in the workplace but whatever limits that exist can be often be rendered useless by a well-crafted company privacy policy that in effect says that most areas or activities in the company will be monitored (O’Connor v. Ortega, 1987). In other words, an employer not only can monitor an employee, especially in regards to information technology; and in some cases has a responsibility to monitor employees in order to protect themselves and their shareholders from liability.
If an employer can legally monitor an employee, the next question is should they monitor and employee beyond the minimum required. In other words, what are the ethical considerations that could influence the extent of employee monitoring? Naturally, as mentioned, employee monitoring is necessary in some circumstances. However, just as their needs to be a balancing in deciding when where security and privacy collide, so should there also be a balancing of a company’s interests for safety, security, and protection with the employee need to enjoy some privacy in the workplace. For instance, a company should first and foremost have a clear privacy policy that all employees are required to know and understand. This helps that company in making it clear what acts they will monitor and what one they will not. This also helps employee understand what they need to avoid doing if they are concerned about their privacy being violated. Secondly, just because an employer can monitor an employee should not mean that they must monitor an employee. For instance, an employer can make clear that if circumstances, warrant monitoring, then they will implement monitoring. In this way, employee can feel safe in the idea that if they follow the company policy, then they will not be subject to any extra monitoring measures. Lastly, monitoring of an employer’s off-work activities is ethically questionable. To be sure, simple because a person works for an employer does not mean that have to dedicate their whole existence to them. Accordingly, off-hours monitoring of an employee social media should be limited or prohibited.
References
Loizides, G.P. (2004, Jun.). Deconstructing Fordism: Legacies of the Ford sociological department. Retrieved from http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=2124&context=dissertations
O’Connor v. Ortega, 408 U.S. 709 (1987). Retrieved from https://supreme.justia.com/cases/federal/us/480/709/case.html
Privacy Rights Clearinghouse (PRC). (2016). Fact sheet 7: Workplace privacy and employee monitoring. Retrieved from https://www.privacyrights.org/workplace-privacy-and-employee-monitoring
Solove, D.J., Rotenberg, M., Schwartz, P.M. (2005). Information Privacy Law, 2nd Ed. New York, NY: Aspen Publishers.
