eyes are watching electronic workplace monitoring by nicki jhabvala casena leazer

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Eyes are Watching Electronic Workplace Monitoring By Nicki Jhabvala Casena Leazer

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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