Eyes are Watching Electronic Workplace Monitoring
By
Nicki Jhabvala
Casena Leazer
HISTORY 101 … abridged
Better technology =
Greater Communication =
More commonly used =
Greater need for regulation
HISTORY 101 … abridged
For businesses, regulation is with
electronic monitoring
Forms of Monitoring
o E-Mails
oVideo Surveillance
oVoice Recording
oTelephone Recording; Retrieving Voicemails
oGPS Tracking
oKeystrokes
oWeb sites visited
oTwo-way mirrors
oWiggles
A Few Numbers
AMA Survey of 526 American Companies
~75% of companies use some form of monitoring60% use software to monitor e-mails and IM’s51% monitor time spent on company phones &
the number of outgoing calls made51% use video surveillance in the office8% use a GPS system to monitor company car 5% monitor company provided cell phones
Put it Into Perspective
•Those 51% who monitor phone calls … yeah, well it used to be only 9% in 2001.
•And those 51% who use video surveillance … was 33% in 2001.
•26% have fired their employees for misusing internet …ouch.
The Debate
Where is the line drawn between an employee’s right to privacy and an
employer’s right to regulate the company?
Staffer’s Side
Simply working for someone does not give them the right to intrude
upon basic human rights and common courtesies.
WHY?
•(1) Trust: hiring implies mutual trust
•(2) Personal things: some things an employee may do at work are for personal reasons and, frankly, none of an employer’s business
•(3) Necessity: not all forms of monitoring are necessary or relevant to company business
•(4) Less Restrictive Means: If an employer is trying to foster productivity and maintain company loyalty, there are better ways of going about doing that.
•(6) Discrimination: acts of retaliation against employees
•(5) Stress: creates an unpleasant environment at work
Constitutional Protections
•The constitutions of 8 states explicitly protect privacy and offer greater protection of the rights of public employees than the U.S. Constitution does.
•However, these documents protect public employees and the protection does not extend to the private sector.
•Exception: California. It has extended its state constitution's protection of privacy to private AND public employees
•In Short: Not much constitutional protection for employees that is clearly and explicitly stated.
The Boss-man’s Side
If an employee is under the umbrella of an employer
either by physical location or through use of company equipment, employers have every right to monitor the behavior of its employees.
Why?
•(1) Electronic Communications Act of 1986 = OVERRULED!
•Established before internet, so it’s obsolete
•(2) Today’s Common Law: if you are using anything that is owned by the company, and employee should have no expectations of privacy
•(3) Prevention & Loyalty: don’t want company info from being leaked
•(4) Keeping Tabs: when they’re on the clock, employees to be doing work
•(5) Fend off Litigation: explicit proof for when an employee sues an employer
•(6) Federal Example: if the govt. can do it, I can too
Law is on the Boss-Man’s Side
Can my employer listen to my phone calls at work?
In most instances, YES!
Only when all speakers are in California must consent be required for recording.
Law is on the Boss-Man’s Side
If I wear a walkie-talkie headset, are my conversations with co-workers subject to
monitoring?
YES!
Law is on the Boss-Man’s Side
Can my employer obtain a record of my phone calls?
YES!
Law is on the Boss-Man’s Side
Is my employer allowed to see what is on my terminal while I am working?
Generally,YES!An Exception would be Union Contracts where state law doesn’t
supercede them.
Law is on the Boss-Man’s Side
Is electronic mail private? What about voice mail?
NO!Not if sent or received from a company computer!
Law is on the Boss-Man’s Side
When I delete messages from my terminal, are they still in the system?
Yessirreee!
Law is on the Boss-Man’s Side
My employer's electronic mail system has an option for marking messages as
"private." Are those messages protected?
NOPE!
Law is on the Boss-Man’s Side
What about my employer's promises regarding e-mail and other workplace
privacy issues. Are they legally binding?
Ummm ….
NO!
Boss-Man’s Bottom LineYour purpose at work is to work. Read the company manual and make sure you are not violating any rules because your boss is watching.Your purpose at work is to
work. Read the company manual and make sure you are not violating any rules
because your boss is watching.
Case Study (2001)
•An employee was arrested after a co-worker found him looking at pornographic sites at work
•After arrested, company searched his computer files and e-mails and found nude/semi-nude photos of his 10-year-old stepdaughter, which he used to gain access to a child porn site and e-mails he sent to others regarding child pornography
•Mother of 10-year-old sued the company because she felt they did not do a good job of catching the employee’s activities earlier
•MOM WON, Company learned from mistake AKA now uses electronic monitoring
Cramer v. Consolidated Freightways
•Consolidated installed secret video taping and two-way mirrors in bathrooms to catch employees using illegal drugs.
•Lloyd Cramer and other employees of Consolidated sued for invasion of privacy
•Employees and Consolidated part of collective bargaining agreement that covered the uses the employer could make of video cameras to discipline or discharge an employee
•California prohibits two-way mirror surveillance
•CONSOLIDATED LOST
•Effect of Case: company contractual agreements are pre-empted by state laws and regulations
So What Can You Tell Ma & Pa ?
That your tuition bill is worth every penny …
‘Cause you won some candy in Jeopardy today!
JeopardyJeopardyNumbers Forms Law Ethics Reasons
$100
$200
$300
$400
$500
$100 $100$100 $100
$200 $200 $200 $200
$300 $300 $300 $300
$400 $400 $400 $400
$500 $500 $500 $500
Final Jeopardy
$100 Question from $100 Question from NumbersNumbers
According to the 2005 AMA Survey,the percentage of American
companies use some form of monitoring.
$100 Answer from $100 Answer from NumbersNumbers
What is 75 percent?
$200 Question from $200 Question from NumbersNumbers
According to the 2005 AMA Survey, this percentage of American
businesses monitor company cars with a GPS System.
$200 Answer from $200 Answer from NumbersNumbers
What is 8 percent?
$300 Question from $300 Question from NumbersNumbers
According to the 2005 AMA Survey, this percentage of American
businesses use video surveillance.
$300 Answer from $300 Answer from NumbersNumbers
What is 51 percent?
$400 Question from $400 Question from NumbersNumbers
According to the 2001 AMA survey,this percentage of American businesses
used video surveillance.
$400 Answer from $400 Answer from NumbersNumbers
What is 33 percent?
$500 Question from $500 Question from NumbersNumbers
According to the 2005 AMA survey,this percentage of American businesses
actually fired those employees who misusedthe Internet.
$500 Answer from $500 Answer from NumbersNumbers
What is 26 percent?
$100 Question from $100 Question from FormsForms
This is the most commonly used form of electronic monitoring.
$100 Answer from $100 Answer from FormsForms
What is e-mail monitoring?
$200 Question from $200 Question from FormsForms
In Cramer v. Consolidated, thedefendant was accused of using this
type of electronic monitoring.
$200 Answer from $200 Answer from FormsForms
What is video surveillanceOR
Two-way mirrors?
$300 Question from $300 Question from FormsForms
Keeping tabs on an employee in the restroom is often done with this type
of monitoring.
$300 Answer from $300 Answer from FormsForms
What is video surveillance.
$400 Question from $400 Question from FormsForms
If you decided to use the company car to takeyour date out to dinner, I could hunt you down
with this form of monitoring.
$400 Answer from $400 Answer from FormsForms
What is GPS tracking?
$500 Question from $500 Question from FormsForms
If you called your mommy, I could easilymonitor your call with this.
$500 Answer from $500 Answer from FormsForms
What is telephone recording?
$100 Question from $100 Question from LawLaw
True or False: If you was your employer andyou used the company’s computer, I couldkeep track of your e-mails from the computer.
$100 Answer from Law$100 Answer from Law
What is TRUE?
$200 Question from $200 Question from LawLaw
This act was basically useless in terms ofregulating the Internet.
$200 Answer from Law$200 Answer from Law
The Electronic Communications Act
$300 Question from $300 Question from LawLaw
True or False: If you were my employee, you could sue me for invasion of privacy if I monitored your telephone calls from
the company’s phone.
$300 Answer from Law$300 Answer from Law
What is FALSE?
$400 Question from $400 Question from LawLaw
True or False: Just because your e-mailsare labeled as “private,” they really aren’t.
$400 Answer from Law$400 Answer from Law
What is TRUE?
$500 Question from $500 Question from LawLaw
True or False: The 8 state constitutions thatexplicitly protect individual’s workplace
privacy generally serve private employees only.
$500 Answer from Law$500 Answer from Law
What is FALSE?Public only.
$100 Question from $100 Question from EthicsEthics
This is the main argument employees have with electronic monitoring in the
workplace.
$100 Answer from $100 Answer from EthicsEthics
What is Privacy?
$200 Question from $200 Question from EthicsEthics
True or False: Most people are OKwith their employers tallying their
trips to the restroom.
$200 Answer from $200 Answer from EthicsEthics
What is “Dunno, whatever floats yourboat, I guess.”
$300 Question from $300 Question from EthicsEthics
True or False: Companies believe theyhave a right to maintain control of
business operations.
$300 Answer from $300 Answer from EthicsEthics
What is True?(generally)
$400 Question from $400 Question from EthicsEthics
According to most employees, beinghired implies this.
$400 Answer from $400 Answer from EthicsEthics
What is trust?
$500 Question from $500 Question from EthicsEthics
Monitoring that serves as an act of retaliation against employees iscommonly considered to be this.
$500 Answer from $500 Answer from EthicsEthics
What is discrimination?
$100 Question from $100 Question from ReasonsReasons
One reason companies give forusing monitoring is that it provides
explicit proof for this.
$100 Answer from $100 Answer from ReasonsReasons
What is fending off litigation?
$200 Question from $200 Question from ReasonsReasons
One reason companies give for usingmonitoring is that these people use it.
$200 Answer from $200 Answer from ReasonsReasons
What is the Federal Government?
$300 Question from $300 Question from ReasonsReasons
A reason employees give for opposingmonitoring is that it is not the least of this
type of means.
$300 Answer from $300 Answer from ReasonsReasons
What is restrictive?
$400 Question from $400 Question from ReasonsReasons
This type of law allows employers to monitor their employees in the workplace.
$400 Answer from $400 Answer from ReasonsReasons
What is Common Law?
$500 Question from $500 Question from ReasonsReasons
Most employees argue that monitoringcreates this in the workplace.
$500 Answer from $500 Answer from ReasonsReasons
What is stress?
Final JeopardyFinal Jeopardy
This person has the greatest legal weight(as of now) in the debate of electronic
monitoring.
Final Jeopardy Final Jeopardy AnswerAnswer
Who is Boss Man?Other accepted answers:
Boss LadyEmployerBMOC
Head HonchoMan in Charge
Top Dog Big Shot