Privacy in the Workplace
“Employee Monitoring: Is there Privacy in the Workplace?” 2003. Consumers Action Network
Professionally ethical standards dictate that employees should be committed to working and performing at a professional level while in the workplace. Most employees assume that they have a right to a reasonable expectation to privacy while in the workplace. The majority of employers however in today’s society, do utilize some form of employee surveillance and monitoring. This monitoring often extends into private emails and phone communications. Do employers have the right to monitor an employee’s every move, from a trip to the water cooler to a visit to the lavoratory? Many employers have successfully argued that they have a legitimate business right to invade an employee’s privacy in the workplace. Currently much controversy exists regarding the issue of workplace monitoring.
Advanced technologies now make it possible for employers to monitor almost every aspect of an employees’ job. Technology allows monitoring of telephone usage, computer terminal usage, electronic and voice mail and internet usage (CAN, 2003). Typically the monitoring of such usage is unregulated, and therefore poses the questions of the ethical and moral righteousness of excessive monitoring in the workplace.
Employers should have the right to monitor employee communications while in the workplace, including telephone and computer usage. Such monitoring however, should be restricted to an employers surveillance of work related calls and situations, unless an employer has reasonable ground to expect that an employee is abusing organizational programs and services. When an employer has reasonable cause to suspect that an employee is abusing corporate equipment and time, then an employer should be afforded the right to monitor employee communications to assess the nature and depth of the problem, and take appropriate remedial action.
In most situations, unless a company policy specifies otherwise, an organization may “listen, watch and read most of your workplace communications” (CAN, 2003). This includes phone calls at work. Employers may choose to monitor calls with customers and clients in an effort to gain an adequate evaluation of quality control (CAN, 2003). Such monitoring is purposeful in nature and well within the guidelines of professional ethical standards. Many employers have established policy guidelines that specifically inform employees of the situations and circumstances under which their communications may be monitored.
An employer is not however, in all circumstances, obligated to inform an employee that they are monitoring communication exchanges that occur within the workplace. Only in some states do requirements exist that would require employers to inform the consumer of specific monitoring or surveillance measures. In California for example, the state law requires that all parties involved in a conversation be made aware that there conversation may be recorded or monitored, whether through use of a beep tone or recorded message (CAN, 2003). Such notification does allow the employer to monitor the content of their messages. Most employees assume that an employer will only utilize technology to monitor work related calls and email communications. This is not the case however, and very often private messages are entwined with personal ones, and employers end up with evidence and details regarding both forms of communication.
Many employees have argued that the law was established to protect and maintain personal employee and consumer rights to privacy. Under general federal case law, an employer is obligated to stop monitoring a call once they realize it is personal in nature (CAN, 2003 & Watkins v. L.M. Berry & Co., 704 F .2d 577, 583 11th Cir. 1093). However, the majority of employers inform employees that personal phone calls are against company policy, and therefore the employee is expected to assume the risk of monitoring when they make personal calls on business lines (CAN, 2003). In this day and age the only mechanism available to ensure privacy of personal calls is usage of mobile or pay phones. Many employers have also argued that when they have reasonable grounds to expect abuse, they may monitor employee’s phone calls for content regardless of whether or not their calls are private in nature.
Many employees assume that conversations they have with co-workers are also private in nature. However, conversations with co-workers are also subject to monitoring just as conversations with customers are over the telephone (CAN, 2003). In most circumstances phone calls of any kind that employees make can be monitored and recorded via a device called a ‘pen register’ (CAN, 2003). This register enables the employer to view any phone numbers dialed by an employee’s extension, and allows recording of the length of each phone call (CAN, 2003). Employers justify usage of such mechanisms as a way to track costs and ensure employees are spending an adequate amount of time on appropriate tasks. Usage of such recording devices does present a disadvantage to employees; many employees have argued that information gathered from pen registers may unfairly portray their usage of the phone over long durations with particular customers, and are concerned that employers will use such devices to measure efficiency rather than the quality of service that employees may be offering (CAN, 2003).
Computer monitoring is one of the most controversial ethical subjects in the professional workplace today. Technological advances have made it increasingly simpler for employees to monitor every detail of an employees work, down to the keystroke. Computer monitoring comes in many forms. One mechanism often employed by organizations is a software program that enables manager to view what is on a screen or stored in the hard disk on an employees computer (CAN, 2003). Employers utilizing such software are able to monitor internet usage including use of electronic mail and web surfing during work hours (CAN, 2003).
Many employees have attempted to argue that such mechanisms do not adequately assess whether or not they are putting in an appropriate amount of time on the job. For example, an employee may argue that their netsurfing is directly related to their job function. Other employees argue the legitimacy of web surfing during their official break or lunch hours. For employers to adequately assess the actual times that an employee utilizes internet and corporate resources, and compare them to employee’s reported lunch and day breaks, a significant amount of time and resources would have to be wasted.
Keystroke monitoring is available for individuals in data entry and word-processing jobs. Such programs typically monitor how many keystrokes per hour an employee is performing (CAN, 2003). Employers argue that such software is ethically and morally acceptable because data entry and word processor workers should be expected to maintain a certain level of performance throughout the day. Such software has the ability to inform employers if a particular employee is also performing at a rate above or below a designated number of keystrokes that should be expected for their position. This software does not necessarily take into consideration time away from the computer an employee may be spending networking or gathering information for a certain project, and therefore may penalize employees unfairly.
Most employers have the ability to monitor what an employee is viewing on their terminal as they are viewing it. Employees are not granted many protections under the law, unless they have a contract with an employer that specifically limits an employer’s right to monitor there daily activities. Computer monitoring often occurs without an employee’s knowledge.
The biggest source of controversy related to the ethical morality of computer monitoring is whether or not employers have a right to monitor electronic mail systems within the workplace. Nary an employee has worked at any company and not sent a personal email at one time or another. Some employees frequently use corporate email accounts for personal use on breaks. An employer owns the electronic mail system used at any company however, and therefore maintains the right to review the contents of any email programs at any point in time. Messages that are sent from an employee to anyone in the company as well as messages sent to individuals outside of a company are subject to monitoring (CAN, 2003).
Even personal and private accounts such as Yahoo and Hotmail can be monitored by employers if an employee is using a corporate computer terminal. The reality is that many court cases have been decided in the employers favor, and therefore employees need to be very cautious about performing personal tasks on company time (CAN, 2003).
Many employees assume that by deleting personal messages, voice mails and emails they are releasing themselves from liability. Unfortunately the majority of voice mail systems that are electronic in nature and email systems are backed up by company’s permanently on magnetic tape and can be retrieved at any point in time (CAN, 2003).
Very few laws currently exist that regulate employee monitoring. In fact the primary professional ethical consideration is whether or not current law “provides adequate protection for the individual’s right to privacy in the workplace from threats posed by computer technology, electronic eavesdropping, video and sound recording equipment and databases filled with personal information” (Rich, 1995). Privacy is considered a key value by many individuals. In the United States Americans consider their right to privacy in issue guaranteed by the constitution. However, privacy rights which typically guarantee an individual’s right to a “private life” are often contorted by varying state and federal statues and “tort law judicial decisions” (Rich, 1995).
Privacy laws for the most part are enacted to ensure that an individual maintains their right to privacy within the confines of their own home (Rich, 1995). The advent of advanced technology has created new changes in privacy concerns that now spread to the workplace and society in general. Privacy should be considered the right of any individual to “control the dissemination of information about oneself” (Rich, 1995). This ability is compromised when an employee shares information about him/herself in the workplace, even if they consider their communications to be private. Many states do protect an individuals right to privacy.
Many employers understand however, the idea that private electronic monitoring of workplace actions does not fit the “traditional definition of a search” (Rich, 1995). Most individuals feel they are protected against unreasonable searches and seizures, but as the concept of search is not uniformly defined for corporate entities, a large gap exists between interpretation and reality. Many employees enter the workforce with and “expectation of privacy” (Rich, 1995). Privacy can’t be guaranteed in the workplace however, and therefore ethical standards should be established that govern the principles of monitoring private employee communications.
Employees do have an obligation first to attempt to protect their privacy within the workplace. If an employee for example, needs to call their doctor to obtain work results and does not have access to a mobile phone, it seems reasonable that an employee should be allowed to conduct his/her call on a designated break or lunch hour using a company phone, provided that the call does not incur long distance charges. An employer under such circumstances should not have the right to monitor or record such phone calls, especially considering the content of the call might include very private information regarding an employees health status. A reasonableness standard must be assessed within the workplace that judges “whether the inception and scope of invasion of privacy is reasonable under the circumstances” thereby justifying employers expressed need for monitoring or supervision (Rich, 1995). An employer must validate their need to monitor an employees private communications if they intend to do so at all, in order to attempt to maintain a reasonable expectation of an employee’s right to personal privacy.
Most people would argue that employees should be afforded a reasonable measure of personal privacy in the workplace. However the reality exists that court law is very subjective, and an employee’s workplace privacy cannot be guaranteed by any means at this point in time. Many employees enter the workforce with a “reasonable expectation of privacy” yet no laws or current regulations currently interpret or define what it is that can be considered reasonable protection under the law.
Employers do have a very strong leg to stand on. E-mail communications for example, should be considered an employer tool if the employee is using a work related account set up for work related communications. In this situation, the “employer’s interests outweigh those of the employee” and privacy interests of the employee are of little concern to the employer. The employer may legitimately argue that the email account being utilized was established and maintained for business purposes only, and therefore is rightly monitored and recorded to ensure workplace efficiency.
Employees have argued however that they have the right to a “reasonable expectation to privacy in work areas” that are of exclusive use those the employee uses, including offices, unless an employer informs the employee that they will be monitoring the area in question (Rich, 1995). The employer however in most situations, has no such expectation of reasonable privacy if an employee is using company equipment on company time. In most cases an employer will support this notion, but justify having monitoring equipment when there is reasonable evidence to suggest that an employee may be performing extraneous personal activities on company time. An employer also does have the right to expect that an employee will be utilizing company space and equipment to complete company assignments during the day, not personal ones. An employer may in essence argue from an ethical standpoint that employees should be obligated to perform work related functions only while at the workplace. This argument has served as the justification for many employee surveillance claims.
Federal law offers the least protection to employees seeking privacy standards in the workplace. State laws however recognize that employees have a right to privacy in some regard, and many states have statutes or common laws that dictate specifically employees rights regarding privacy concerns.
Employers may monitor almost any and all activities of an employee while in the workplace, up to and including their actions during their lunch hour if they are eating on company premises, if the employer has established a “reasonable basis for monitoring employees” in a certain manner (Nolo, 2004). For example, a general store owner may use video surveillance at any point in time to monitor employee’s activities and justify its use as a mechanism used “to discourage theft from a cash register and enhance the security of customers” (Nolo, 2004). There are certain areas of any corporation that should be off limits to video monitoring, including employee bathrooms or changing areas (Nolo, 2004).
Professional ethics does dictate that employers cannot simply randomly search employees or employee personal affects without a very reasonable suspicion of misconduct. Workplace searches must be conducted in order to “serve important work related interests, as long as the employer doesn’t duly intrude on an employees workers privacy rights” (Nolo, 2004). Random searches can be conducted when an individual or individual are suspected of theft, but for very few alternative reasons (Nolo, 2004). Even when an employer does have grounds for reasonable search or surveillance, such search and potential seizure must be conducted in the least invasive manner possible (Nolo, 2004).
Professional ethical standards dictate that employers should monitor employee conversations and communications primarily as a measure of quality control (Nolo, 2004). Federal laws do support the notion that employers may do so without warning or specific announcement (Nolo, 2004). Some states have enacted legislation that ensures an employees right to privacy in the workplace however, under certain guidelines. Most provide for telephone and computer monitoring provided the consumer is informed that such surveillance will occur. Employers should be obligated to discontinue monitoring when they realize that a call is personal in nature, unless they have ground to believe an employee is abusing company resources.
Employees must also realize that an employer is within their rights when monitoring email communications, unless an employer has outlined a specific policy that prevents such monitoring from occurring. Employees are obligated to abide by any policies established by an employer. Employees are also obligated to work while they are at work, and this reasonable expectation serves as solid ground for most employers to justify employee monitoring.
Employees should not assume that because they mark a message “private” it will not be read. Employers do have ethical and moral ground to monitor all employee email, as long as “they have a legitimate business purpose for doing so” (Nolo, 2004). Employees need to keep in mind that even private email accounts may be monitored ethically if an employer has reason to believe the employee is abusing company resources on company time.
ACLU. (2004). “Privacy in the Workplace.”
NOLO. (2004). “Privacy in the Workplace FAQ.” Law for All. Available:
Rich, Lloyd L. 1995. “The Right to Privacy in the Workplace in the Information Age.” The Publishing Law Center. Available: http://www.publaw.com/privacy.html
“Privacy in the Workplace.” Available: http://www.privacyrights.org/fs/fs7-work.htm
Part II: Case Study:
Statement of case
Plaintiff Angela Land are appeal the entry of a summary judgment against their employer, GDE corporation alleging wrongful termination and invasion of their constitutional right to privacy regarding GDE’s printing, reading and taking action on emails messages sent by the plaintiff.
Angela was hired by GDE corporation as an HRIS data entry specialist to assist in processing Change of Status forms related to personnel hiring and promotional activities.
In October of 2004, Angela’s boss was conducting a random audit of emails sent from employees to internal customers during the last two months, to ensure that emails communications were following the same customer service level standards that phone communications and in person communications were. Angela’s boss selected “at random” an email communication between Angela and her co-worker Nancy. The email was personal in nature, not related to business material.
Angela’s boss subsequently reviewed the content of all her emails during the last several months, and found a substantial number of emails that were personal in nature, some that included rather risque jokes between co-workers. Her boss issued a warning and reminded Angela that company policy was written and prohibited the use of computer email system to pass along personal messages.
Angela was also disciplined for spending too much time “socializing” with co-workers. On numerous occasions when her boss attempted to reach her, Angela was not available at her desk by phone. Very often her boss came down to her workspace and found her missing in action.
At her next performance evaluation, Angela’s boss informed her that she would be monitoring her performance over a period of six months to ensure that she was spending an adequate amount of time performing data entry functions and not personal ones. Angela’s boss also installed computer monitoring equipment that monitored her keystrokes during work hours.
Angela filed suit against GDE corporation one month later, arguing that her boss was invading her constitutional right to privacy, and violating state mandated wiretapping and eavesdropping statues. Angela had subsequently discovered that the organization was monitoring her phone call communications and a camera had been placed in the vicinity of her workplace.
GDE corporation moved for summary judgment and stated that there “existed no disputed issue of material fact to warrant a trial of the matter.”
Statement of issue
The issue here is whether or not the employee in question has reason to expect the right to privacy within her workplace during work hours. Specifically the employee has argued that she should have a right to expect privacy in her email and phone communications that are marked private. Additionally the employee is protesting placement of a surveillance camera near her area of work.
During the course of her employment, Angela sent numerous emails to co-workers that included non-work related material such as jokes, pictures of her children and newsletters. Angela was not alone in her actions, many employees also sent her pictures and jokes during the course of the day. Angela did acknowledge that she spent a great deal of time away from her desk, but argued that her time spent away was time utilized for company business such as networking, photocopying and filing.
Angela also noted that the communications she sent to her co-workers were marked private, and the majority of them were sent during breaks and/or lunch hours, and therefore the communications in no way interfered with her work quality. Angela does have a legitimate note, pointing out that several employees engage in private email sharing, and that such practice builds networking relationships and camaraderie. Non-of the material that Angela sent was obscene or explicit in nature.
GDE corporation is arguing that the amount of time spent away from the terminal should be minimal for an individual employed in the capacity of a data entry clerk. Part of GDE’s justification for monitoring Angela was a concern that she was spending an unusual amount of time away from her desk on personal rather than work related business. Their primary assertion however is that Angela should have absolutely no expectation of privacy in the workplace. The corporate policy did state that the employer reserved the right to monitor employee daily activities and actions at any time using any reasonable measures necessary. The video surveillance camera was placed in an obvious location, so that Angela and employees working in her vicinity were aware they were being monitored. Cameras were also strategically placed in other areas of the corporation, so Angela should not be singled out.
Court law dictates that a summary judgment is awarded where “the record establishes as a matter of law that no material disputed issue of fact exists of that the cause of action cannot prevail” (Wilkerson v. Wells Fargo Bank, (1989) 212 Cal.App. 3d 1217, 1224). In this case, Angela has argued that GDE violated her firth to common law invasion of privacy protection. The violation of an individual’s constitutional right to privacy depends upon whether or not a person has a reasonable right to expect privacy to begin with. In this situation, Angela’s company GDE asserts that Angela had absolutely no right to expect reasonable privacy in her email and voice mail communications. The company policy in fact maintains the company’s right to monitor employee communications to ensure their business legitimacy.
List of options for action
In this particular case, GDE corporation could choose or could have chosen to terminate the employment of Angela. Angela may also have elected to discontinue use of company equipment for private communications, but at this time she is insisting that she has a right to a reasonable expectation of privacy. Therefore she will either be subject to disciplinary proceedings or termination. In this case it is in GDE’s best interest to proceed with disciplinary action short of termination. Because several other employees have engaged in personal email communications, unless GDE is willing to persecute all of them severely, Angela may have grounds to argue that GDE is practicing discriminatorily and violating professional ethical standards for morality and equality in the workplace.
Statement of other relevant facts and the consequences for each option
If GDE corporation elects to terminate Angela, she could opt to sue for further damages. However at this point, the court is more likely to side with GDE corporation, as they have established a written policy that sets a precedent allowing the employer to monitor employee communications to ensure their relevance to workplace goals. The company has established a legitimate reason to monitor workplace keystrokes for data entry personnel as well.
Statement of relevant moral principles (i.e. deception, informed consent, confidentiality)
GDE corporation is arguing that Angela has deceived the company by utilizing corporate equipment on a personal basis. She also has violated company policy which she agreed to uphold and maintain as a condition of employment. Angela has argued that GDE corporation has violated her right to reasonable confidentiality and workplace privacy. Though she admits that the company has a right to monitor workplace communications, the emails retrieved from her boss were marked private and personal in nature. Angela has assumed therefore that she should have the right to expect a reasonable measure of privacy protection.
Angela could easily counter argue by stating that the company deceived her by making her assume that any emails and phone messages she marked private would remain confidential in nature. However, GDE can counter legitimately that their corporate policy also allows them to monitor private and personal messages if they have reason to believe the employee is violating company standards. Angela’s boss had noted on several occasions that Angela was away from her desk, and her keystroke numbers were lower than expected, thereby supporting the notion of reasonable cause for suspicion.
Angela maintains that she utilized company equipment only on her lunch breaks, and therefore did not sacrifice any company time to conduct private business. GDE does not have any literature or policy written at this time however, that explicitly prohibits employees from using company equipment during personal time, which includes breaks. Therefore, in this situation it is in the companies best interest to issue a warning and revise their policies to reflect their position related to computer and phone usage during employee breaks. By specifically defining corporate practices within policy and via signature, the company may avoid violating any moral or ethical standards related to expectations of privacy in the workplace.
Description of the decision that was made
In this case, the court rules in favor of GDE corporation, claiming that the plaintiff, Angela, had no reason to expect a reasonable right to privacy within the workplace. The company had established a policy that stated that the company reserved the right to monitor employee workplace communications regardless of their content. “Whether an individual’s constitutional right to privacy has been violated depends first on a determination whether that individual had a personal and objectively reasonable expectation of privacy which was infringed” (Alarcon v. Murphy, (1988) 201 Cal.App. 3d1, 5;People ex. Rel. Franchise Tax Bd. V. Superior Court (1985) 164 Cal. App. 3d 526, 540-541).
GDE successfully argued that the employee in this situation had no reasonable expectation of privacy in her workspace or in her email messages. The plaintiff supported this argument with evidence of the company policy which Angela acknowledged and signed. The company also uses a computer registration form, which requires each employee to sign a statement that states that the employee agrees to use company equipment for business purposes only. Angela did not have any ground to stand on, as GDE also has a proven track record of prosecuting and firing other employees who abused company equipment for personal reasons.
Angela was also monitored for keystroke compliance in this particular case. Angela has an obligation to perform a certain amount of work for a designated amount of income. When she was hired, her employer pointed out her job description specifically delineated a number of keystrokes that should be averaged per hour for data entry operators.
In this case Angela was performing below this standard on a daily basis. Her justification for doing so was work related. Angela claimed that she spent a great deal of time away from her desk working on copying projects and filing projects. From an ethical perspective, the employer could not take disciplinary action if the employee could indeed prove that she was performing work related tasks. Instead, GDE has an obligation to re-direct Angela’s work efforts so that she spends more time at her desk performing data entry and less time copying and filing. This is a performance related issue that should be weighed separate from the privacy issue. This issue can be addressed through manpower options.
Evaluation of the decision.
In this particular case the corporation in question took adequate measures to ensure that employees were aware a policy was in place asserting that company equipment was to be utilized for business purposes only. The company had a written policy that all employees were required to review that specifically reserved the organizations right to monitor communications with just cause. In addition, GDE required that employees sign a computer registration form that mad employees aware that their activities may be monitored. Angela not only agreed that she recognized the company policy, but signed the computer registration form that acknowledges that she realized use of computer equipment should be strictly limited to official functions.
GDE also had grounds to stand on because they persecuted employees in the past for similar infractions of the corporate policy. However to maintain an ethically correct professional standards, GDE should also look into persecuting all employees using corporate computers for personal communications, to be fair to Angela. They violated her privacy but had grounds to do so. They should also investigate the employees with whom Angela communicated, because they obviously violated corporate policy as well.
From an ethical perspective, in some sense employees should be guaranteed a right to an expectation of privacy, at least while they are using the restroom or using their own personal equipment, such as a mobile phone on a break. At this point in time however, the law does not support the notion that under any circumstances an employee has a right to a reasonable expectation of privacy at work all the time. Ethically employers should not listen into employee’s private conversations or monitor private email communications.
However, from the same moral high ground, if an employer has a reason to believe that an employee is utilizing company software and programs during work hours on a regular basis for personal reasons, that employer has justification to investigate the content of the communications occurring. As long as an employer has established corporate policies that dictate their intention to monitor employees under certain circumstances, most employees do not have an ethical leg to stand on.
GDE also legitimately researched Angela’s email and voice mail communications “after the fact.” They did not intercept any of her transmissions while in progress. They intercepted messages only after they had reasonable suspicion to believe that Angela was spending an inordinate amount of time on the computer. The moral high ground for GDE to take would be to continue proceedings by investigating all employees within the corporation that are currently participating in inter-email communications on a personal level.
It would be in Angela’s best interests at this point to understand that she does not have a reasonable right to expect privacy in the workplace, and should therefore cease using company equipment for personal reasons. GDE should establish a more clearly defined policy that prohibits personal communications during breaks to strengthen their standpoint.
‘Bonita Bourke v. Nissan Motor Corporation.” July 1993. Available:
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