Employee Privacy Rights in the Workplace Essay

Employee privacy has generated much hue and cry over the years. It has turned into a contentious issue with the passage of time and with the emergence of more subtle and penetrative monitoring technologies available to invade the employees’ privacy i. e. to eavesdrop employees’ telephones, checking their e-mail through computer terminals etc. (Dickenson, 2001; Lane, 2003) Due to this controversy “Electronic monitoring and surveillance has been the subject of high media profile” (Losey, 1994, p. 77).

But despite this media glare, the issue of employees’ privacy rights is important as it is concerned with two aspects of human social life i. e. the individuals and its workplace. In order to be successful in business in today’s market, companies cannot avoid employing technology and the Internet. And these companies have to protect their data and other valuable information to be passed on to their rivals. So in order to protect their economic and commercial interest, companies and organization eavesdrop on the employees’ privacy through various means and manifestations. Currently, as many as 26 million workers in the United States are monitored in their jobs, and this number will increase as computers are used more and more within companies and as the cost of these monitoring systems goes down” (DeTienne, 1993, p. 33). DeTienne (1993) further assessed that “By the end of the decade, as many as 30 million people may be constantly monitored in their jobs”. The decade has passed and various studies shows that conditions have grown at a much graver level that DeTienne observed and predicted in 1993.

In the past two decades, almost every aspect of the business world is affected by technological advances. Technology use is a vehicle that employees can use to take company data. Studies have found that due to the use of technology, it is much easier for workers to steal important information from their employer. Workplace Data (2004) states that a “survey found that 30% of people had stolen a contact database when they left an employer. Many employees stealing from companies send the purloined data to their personal e-mail account held at home or on the web. 1 percent burned the information onto CDs. ” So this forces the companies to keep constant surveillance on their employees. But another dimension of the problem is the personal and moral integrity of the employees. His moral and constitutional right of privacy is at stake. Due to these technological security issues, employers feel the need and have the capability to monitor their employees. E-mails, voice mails, the Internet, telephones, computers, etc. can be use for unregulated monitoring.

Employees say this is an invasion of their privacy. Companies say this is a protection of their assets. The law is not clear on whether companies are invading employees’ privacy rights regarding information technology so policies must be set and employees must be informed on what is considered to be an invasion of company confidentiality or employee privacy rights. (Kallen, 2006) A very recent contribution to this employees’ surveillance is Electronic monitoring. This has made the monitoring easier and unobserved.

Electronic monitoring is defined as “the computerized collection, storage, analysis, and reporting of information about employees’ productive activities” (Office of Technology Assessment, 1987, p. 27). In cases of lawsuits and investigations of regulations, instant messages and e-mail messages are used as the main source of evidence. However, according to the 2004 Workplace E-mail and Instant Messaging Survey, “employers remain largely ill-prepared to manage e-mail and instant messaging risks. ” It is still not common for businesses to have policies set regarding information technology.

Studies have found that 35 percent of companies have any policies set in place and a mere six percent of businesses save electronic business records. However, among those businesses that does have established written and deletion policies an astonishing number still do not bother to save e-mails and instant messages. The 2004 Workplace E-mail and Instant Messaging Survey also report, “The failure to properly retain e-mail and IM reflects employers’ failure to educate employees about e-mail and IM risks, rules, and policies.

The fact that 37% of respondents either do not know or are unsure about the difference between an electronic business record that must be retained, versus an insignificant message that may be deleted, suggests that employers are dropping the ball when it comes to effectively managing e-mail and IM use. ” Company data is not the only thing that is at risk when policies are not in place and implemented. Employee bank account information, social security numbers, contact information, and other confidential information should also be a responsibility of the company’s.

Grifing (2006) lists that “8,500 FedEx employees had their W-2 forms and salaries inadvertently exposed” and that is regarding just one company alone. Companies can now collect employee genetic information in order to read further into the employees to determine whether or not he or she will perform well on a job and other information. Gahtan (1997) reports, “Employers may also find that they could be held liable for e-mail or Internet-related activities of their employees. In most cases, employee e-mail or Usenet postings carry the employer’s name or trademark as part of the employee’s e-mail address.

Defamatory, political or religious statements sent outside the company by employees may therefore be attributed to the employer. ” Employers also have an obligation to provide a work environment free of discrimination and harassment. Inappropriate material circulated internally can create a problem. A subsidiary of Chevron Corporation settled a sexual harassment lawsuit for $2. 2 million after a list called “Why Beer is Better Than Women” was circulated through its E-mail system. Another concern is the potential liability for sexually explicit messages sent to other employees.

Such e-mail messages can be used to support a harassment or discrimination case. Pornographic images downloaded by employees are another big problem. ” Security breach laws have been adopted by 24 states. Laws also cover the proper removal of information, security safeguards, and the use and display of customer and employee information. More states shall be passing laws soon. Companies are now able to use genetic information to determine whether or not a potential employee is suitable for a job and if a current employee will perform accordingly.

Companies cannot ignore the laws that states have passed and the same information and techniques that can protect companies’ interest and confidentiality can be the same information and techniques that can harm employees’ rights. Although the law is not consistent regarding whether companies are invading employees’ privacy rights regarding information technology policies must be set and employees must be informed on what is considered to be an invasion of company confidentiality or employee privacy rights.

This will at least help inform, clarify, and provide uniform guidelines to follow in order to prevent and minimize confusion, issues, security breaches, and lawsuits. As stated earlier, policies should be set, implemented, and enforced. All staff members should be informed of these policies. Continuing training and meetings regarding policies and procedures should be conducted. The policies should cover all aspects of the business from the hiring process to the termination of employment with the company. This is for the protection and benefit of both the company and its employees.

The most effective policy for the workplace would provide management pertinent information and procedure when hiring, firing, enforcing, and decision-making. Employee protection of genetic information and the prohibition of any discrimination in all areas of business at all levels shall be enforced. This will allow employers the necessary information to conduct business in a safe and professional environment and protect both the company and employees. Employees should be informed of any tests that will be performed in order to make hiring decisions.

Potential employees should be given the intention of each test and also the results of their tests. Explanations of the results and how they affect the potential employee and his or her job should be relayed. Management should be aware of which company information and data is confidential. Companies should determine what materials/data fall under this category and their own definition of confidential and sensitive. Then they should educate various employees accordingly on the proper procedure of handling, storing, and the elimination of such confidential material if necessary.

All members of management and staff should be aware and informed of the risks to company data and how to prevent data breaches. Policies that are decided upon, implemented, and enforced should be according to the laws of the state in which the company is based and/or conducts business. Companies should employ legal assistance in determining and creating policies that are legally binding. As the balance between employee privacy rights and companies’ need to know and protect their sensitive data, it is crucial that a company aims to provide policies and procedures, which will protect both.

The struggle between the two is growing tremendously as lawsuits and breaches also continue to grow. The law is not clear on whether companies are invading employees’ privacy rights regarding information technology so it is the responsibility of companies to provide, enforce, and teach the policies that will protect an invasion of company confidentiality or employee privacy rights. (Fores & Harrison, 1999). All the above mentioned facts and figures clearly manifest that employees’ privacy rights are violated in way or the other.

Although companies and organizations have rights to protect their data and information but they are unable to devise any suitable mechanism for this purpose and have solely relied on the privacy invasion of their employees. Despite it moral perspective, this privacy exploitation has serious legal constitutional repercussions and as it harms the right of privacy and the constitutional provision for no illegal and unjustified intrusion in the lives of American national provided under fourth amendments.

But Casilly and Draper (2002) are of the view that “with regards to the workplace, there are few federal constitutional protections. The Supreme Court has made clear that the Constitution proscribes only the government from violating the individual’s rights to privacy. ” (p. 1) So according to this ruling, “The extent of an employee’s privacy rights depends in the workplace depends on whether he works in a public or private sector. (p. 1) So U. S. constitution does not provide any viable solution to the dilemma of privacy of employees in the workplace. Although certain states have adopted statutes to stop the invasion on the employees privacy but this invasion is performed in so subtle a way that even employee himself remains unaware of it. So employees’ privacy rights are limited constitutionally and legally and are almost non-existent practically.