Workplace Monitoring - Article Example

Workplace Monitoring – How Much is Too Much? Workplace monitoring is the explicit and systematic surveillance of the management on individual employees and any communications taken in the course of their employment. The 21st century workplace is characterized by the extensive use of the latest communications technology in day to day business and even personal communication. A recent study found that over 130 million workers send 2.8 billion e-mail messages daily.1 The fact is that technological advancement and dependence of these technologies provide unprecedented efficiency to the workplace. However, one common side effect is the increasing conflict between employers and employees regarding privacy issues.2 Despite the battle over privacy issues, employers remain firm in enforcing workplace monitoring for a number of reasons. A survey by the American Management Association in 2001 revealed the following as the top reasons: (1) Legal compliance – to provide some degree of legal protection for both company and consumer and falls under “due diligence” of a company to keep adequate records; (2) Legal liability – to prevent employees from accessing offensive graphic material on computer screens that could escalate hostility in the workplace environment; (3) Performance review – to allow supervisors to review, evaluate and improve job performance of customer service and consumer relations personnel based on taped field calls and other sources procured through monitoring; (4) Productivity measures – to ensure all activities and communications in the workplace are business related; (5) Security concerns – to protect the value of proprietary corporate information.3 1. D. Hawkins, Office Politics in the Electronic Age Workplace, U.S. News & World Report, Mar. 22, 1999. 2. Duke L. & Tech. Rev., “Monitoring employee e-mail: Efficient workplaces vs. employee privacy”, iBRIEF/ eCommerce, Issue No. 0026, 25 July 2001, 2 May 2007 . 3. American Management Association, “2001 AMA survey workplace monitoring and surveillance summary of key findings”, AMA Research, 2001, 2 May 2007 . There are many ways by which workplace monitoring is performed. But the main idea is that employers have the right to monitor every business activity performed during office hours. In telephone monitoring, an employer may choose to listen to employees’ phone calls at work for reasons of quality control. Some protection may be accorded to the employee if he is calling from a phone designated for personal calls but if he tries to use a business phone for non-business transactions, he runs the risk of being monitored by the employer. Conversations between co-workers may also be monitored even through headsets and other transmitters. Employers may also obtain records of phone calls made by employees. Telephone numbers may even be recorded by a pen register which gives the employer access to the numbers dialed and the length of each call. This is usually used by employers to measure efficiency of employees with clients especially in customer service and customer relations work.4 In computer monitoring, employers can install computer software that can allow them to see what is on the screen or stored in the employees’ computers and hard disks. They can also monitor internet usage including web-surfing and electronic mail. In specialized work such as word-processing and data entry jobs, keystroke monitoring may also be performed. Employers may also determine the amount of time an employee spends away from the computer or idle time. They may also monitor file transfer traffic along the network of the computers. Since employers own the network and the computers, they are allowed to monitor employees.5 Website blocking is also a common method used in internet usage regulation. Software may be installed to prevent employees from accessing sites that may have offensive graphic material unrelated to the nature of work performed in the company. 4. Privacy Rights Clearinghouse/ UCAN, “Employee monitoring: Is there privacy in the workplace?”, February 2006, 2 May 2007 . 5. Privacy Rights Clearinghouse/ UCAN, February 2006. Electronic mail (e-mail) and voice mail can also easily be monitored by the employers. Companies often have e-mail systems that an employer owns so he is allowed to conduct reviews on the content and nature of e-mails sent by employees. Messages sent within the company are also susceptible to surveillance even ones sent via local network or the ones sent and received from other companies. Web-based email accounts such as Yahoo, Gmail or Hotmail can be monitored by employers as long as they are accessed from company computers. Instant messengers and voice mail systems are also subject to the same monitoring by employers. Information such as recipients, content, number and size of e-mails and voice mails are accessible to employers and may be used for performance evaluation and quality control. Deleted messages may also be monitored since they are retained in memory even after they are deleted and may appear in permanent back-ups on magnetic tape. Encryption measures are sometimes employed by companies to protect the privacy of their employees’ e-mail which involves scrambling the message at the sender’s terminal and unscrambling the message at the receiver’s computer to ensure that only the sender and the intended recipient can read the message. However, this may have been placed to protect company information and not personal messages. It may prevent co-workers and company opponents to read e-mails but employers may retain access to unscrambled messages.6 Other sophisticated forms of workplace monitoring include surveillance video cameras, Smartcard technology and GPS tracking of company cars. Conventional workplace monitoring involves with time in and out systems, logbook for entry and exit and random supervisor checking during office hours. Some radical measures include keeping tabs on amount of time during bathroom breaks and placing devices on chairs to measure wriggling of employees.7 6. Privacy Rights Clearinghouse/ UCAN, February 2006. 7. Duke L. & Tech. Rev., 25 July 2001. Surveys conducted by the American Management Association in 2001 and 2005 has revealed that 77.7% of major U.S. firms conduct monitoring of employee communications and activities including phone calls, e-mail, Internet communications and computer files.8 This reflects that strict workplace monitoring is widespread and common practice among firms dependent of the latest communication technologies. Some of the most popular monitoring practices include website blocking (65%), storage and review of employees’ files (50%), e-mail monitoring (55%), telephone line and phone number blocking (57%), monitoring of time spent on the phone (51%) and Smartcard technology (53%).9 Companies are taking strides to ensure that policies on usage of computers, Internet, phones and other resources. Employers are actively notifying their employees that their workplaces are being monitored. 80% of all companies who engage in workplace monitoring inform workers that content, keystrokes and time spent at the keyboard are being monitored. 82% notify of the company’s policy of storing and review computer files. 86% tell employees of e-mail monitoring. 89% alert of Web usage tracking. Policies have been specifically set-up by companies to allay concerns of litigation and regulatory investigations which include policies regarding personal e-mail use (84%), personal Internet use (81%), personal instant messenger use (42%), operation of personal websites (34%), personal postings on corporate blogs (23%) and operation of personal blogs (20%). Employers are also making sure employees are informed of phone use policies. 78% notify of time spent and number called monitoring. 86% inform regarding conversation taping and 76% alert employees of general monitoring.10 8. American Management Association, 2001. 9. American Management Association, “2005 Electronic monitoring and surveillance survey”, AMA/ePolicy Institute Research, 2005, 2 May 2007 < http://www.amanet.org/research/pdfs/EMS_summary05.pdf>. 10. American Management Association, 2005. The main issue being raised against workplace monitoring is the invasion of privacy of the employees. Monitoring has steadily captured all sorts of happenings that do not require the attention of employers and used to be ephemeral such as water-cooler conversations.11 Angela Georgallis of the Society for Human Resource Management defends employers since their only concern “is that the workplace is a productive and safe environment.” Lewis Maltby of the National Workrights Institute agrees but says “They’re not hostile to privacy, but they’re indifferent to privacy. Indifference is all we need for privacy to disappear.”12 The employers have the right to monitor the business activity of their employees and how they use the resources of their company not so much because of the justification they provide for it (like ensuring productivity) but because they own the job and the resources. By law, the equipment, space and job belong to the company so the employee as an occupant of the job can be subject to checking and supervision by the employer. In principle, workplace monitoring by employers are not in place to invade the privacy of the employees but when the employees perform personal duties during office hours with company resources, their privacy is bound to be broken. Eric Rolfe Greenberg of the AMA explains that the problem is that workers assume that the same privacy rights at home apply at the office.13 As such, workers who have been found engaged in activities unrelated to work during office hours in the vicinity of the company and with company resources have faced serious repercussions. The 2005 AMA survey found that 26% of respondents have fired workers for misusing the Internet; 25% for e-mail misuse and 6% for office phone misuse.14 11. L. Hirsh, “The boss is watching: Workplace monitoring on the rise”, 29 June 2001, 2 May 2007, . 12. L. Keller, “Monitoring employees: Eyes in the workplace”, 2 January 2001, 2 May 2007, . 13. L. Keller, 2 January 2001. 14. American Management Association, 2005. The fact is that current legislation provides very little protection to employee privacy from workplace monitoring. State tort law provides protection of the right to privacy from (1) unreasonable intrusion upon the seclusion of another; (2) misappropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. Two issues that are usually examined include: (1) does the person have a reasonable expectation of privacy and (2) was there a legitimate business justification for intrusion to override that privacy expectation.15 There have been several court cases that have finished in favor of employers including Bourke vs. Nissan, Smyth vs. Pillsbury and Shoars vs. Epson.16 The Fourth Amendment of the constitution provides some protection from privacy as it is stated that “The right of the 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”. However, this amendment is usually applied only in cases concerning the public sector. The constitutions of nine states including California all echo the Fourth Amendment. Although generally, they will not apply to the private sector workplace, it has been successfully used to challenged an employer in the private sector in California.17 The limited protection accorded to employees include information of monitoring of phone calls in advance and non-monitoring of face-to-face private conversations even in the company premises.18 15. M. Dichter and M. Burkhardt, “Electronic interaction in the workplace: Monitoring, retrieving and storing employee communications in the Internet age”, June 1999, 2 May 2007 . 16. Privacy Rights Clearinghouse/ UCAN, February 2006. 17. M. Dichter and M. Burkhardt, June 1999. 18. L. Hirsh, 29 June 2001 Everything must be taken in moderation – including workplace monitoring. Although currently, most companies do not have the capability to support 24-hour surveillance, it will soon become more cost effective which will in turn become more invasive. Some predict that it will only backfire against companies. At present, firing and disciplinary actions of workers who violate policies against misuse of telecommunications equipment contributes to a stressful and hostile workplace. Large of amount evidence may be produced by strict workplace monitoring that could be used against the company in future litigation.19 Keystroke monitoring for intensive word-processing and data entry jobs have been found to cause health problems including stress disabilities and medical disorders such as carpal tunnel syndrome. Inconsiderate monitoring of phone calls may lead to declining quality of service for customer service and customer relations personnel.20 These negative effects of overzealous workplace monitoring have prompted several workers’ rights groups to demand government for more regulations to prevent potential abuse of this right of companies to monitor the activities of its workers. Therefore, companies must be able to strike the balance in workplace monitoring – to know when it is too much. Every company has the right to monitor business activities to ensure productivity and security. However, if the company is insensitive to the needs of the employees for a little privacy, it could prove disastrous to both employer and employee. 19. L. Hirsh, 29 June 2001 20. Privacy Rights Clearinghouse/ UCAN, February 2006. REFERENCES Hawkins, D. Office politics in the electronic age workplace, U.S. News & World Report. 22 March 1999. Duke Law & Technology Review. “Monitoring employee e-mail: Efficient workplaces vs. employee privacy”. iBRIEF/ eCommerce. Issue No. 0026. 25 July 2001. 2 May 2007. . American Management Association. “2001 AMA survey workplace monitoring and surveillance summary of key findings”. AMA Research. 2001. 2 May 2007. . Privacy Rights Clearinghouse/ UCAN. “Employee monitoring: Is there privacy in the workplace?”. February 2006. 2 May 2007. . American Management Association. “2005 Electronic monitoring and surveillance survey”. AMA/ ePolicy Institute Research, 2005, 2 May 2007. < http://www.amanet.org/research/pdfs/EMS_summary05.pdf>. Hirsh, L. “The boss is watching: Workplace monitoring on the rise”. 29 June 2001. 2 May 2007. . Keller, L. “Monitoring employees: Eyes in the workplace”. 2 January 2001. 2 May 2007. . Dichter, M. and M. Burkhardt. “Electronic interaction in the workplace: Monitoring, retrieving and storing employee communications in the Internet age”. June 1999. 2 May 2007. . Read More