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Workplace Privacy - Nov. 2, 2010

By Barbara Haubrich-Hass, ACP/CAS

The right to privacy is a growing concern for all Americans.  The courts are faced with deciding important issues concerning the employer’s right to know versus the employee’s right to privacy. 

An employee’s privacy rights conflict with legitimate employer interests.  Employers pay employees for productive work, and have genuine apprehension that employees waste time, particularly on the Internet.  Employees can also create potential liability to employers by viewing and circulating inappropriate material, and/or cause computer viruses to be downloaded costing the employer time and money to repair the damage.  On the other hand, employees do not want their every movement monitored and feel many of the monitoring methods used by employers are an invasion.

Employees are exposed to many privacy-invasive techniques by the employer.  Computer software allows computer use to be traced, telephone calls to be monitored, and e-mail to be read.  Other, more intrusive, monitoring tools include location tracking, closed circuit surveillance, and background or credit checks.  This article addresses some of these monitoring techniques.  Please keep in mind that workplace privacy laws are ever changing, and this article is not intended in any way to provide legal advice.

Computer Monitoring:  A computer can be the aperture into an employee’s work habits.  Since the employer owns the computer network and the terminals, the employer is free to use them to monitor employees.  Most computer software allows employers to monitor computer use without the employee’s knowledge.  There are several types of computer software that enable the employer to monitor what is in the employee’s computer, Internet usage, electronic mail, and keystroke loggers.

Electronic Mail:  If an e-mail system is used at a company, the employer owns it and is permitted access to its contents.  Any message sent to or from the employee’s computer can be subject to monitoring by an employer, including personal Internet e-mail accounts.  Electronic mail systems retain messages in memory even after they have been deleted.  Although it appears they are erased, they are often permanently backed up. 

Telephone Conversations:  Employers may monitor calls with clients or customers.  However, the parties to the call must be informed that the conversation is recorded or monitored by either putting a beep tone on the line or playing a recorded message.  Employees have the right to privacy in their telephone conversations.  An employer is barred from monitoring, taping, or disclosing telephone conversations unless the employer has the employee’s consent to do so, or is doing so in the ordinary course of business and has notified the employee that it will be conducting this monitoring.

Telephone Numbers Dialed:  Employers may record telephone numbers dialed from the phone extension for an employee with a device called a pen register.  It allows the employer to see a list of phone numbers dialed by an extension and the length of each call.

Location Tracking:  Employers may utilize location tracking software.  Location tracking software can track an employee’s location while he or she moves through the workplace.  Typically, the use of a location tracking device is a condition of employment, and is used primarily for security purposes.  However, by using location tracking, an employer can monitor how much time an employee spends doing each task, including how much time is spent in the bathroom.

While it may seem the employer has the upper hand in monitoring employees in the workplace, employees do have some privacy rights as outlined below.  Some exceptions to these rights may apply, such as employees who are suspected of misconduct in the workplace.

Background or Credit Checks:  Background or credit checks are often appropriate for positions of trust, such as a police officer, but are not appropriate for jobs unrelated to public safety or the handling of very large sums of money.  Before a background or credit check is conducted, the employer must comply with the Federal Fair Credit Reporting Act, which requires that the employer notify the employee or applicant in writing that the employer intends to conduct a background or credit check and receive written permission from the employee or applicant.  In addition, before using the information in the report, the employer must provide the employee or applicant with a copy of the report and explain his or her right to contest the information contained in the report directly to the company or person who prepared it.

Searching Employee Personal Belongings:  Employers are prevented from searching areas in the workplace that the employee has a reasonable expectation of privacy, such as the employee’s purse, the employee’s locker (if it is locked with the employee’s own lock), and private postal mail addressed to the employee.

Disclosure of Employee Information:  An employer may not disclose private employee information if that disclosure would be offensive to a reasonable person and the information disclosed is not a reasonable concern to the public.  For example, it is inappropriate for an employer who learns that an employee is going into rehabilitation for alcoholism to disclose this fact to other employees.

Conclusion:  Although I agree that some of these monitoring techniques seem extreme and some employers abuse these monitoring techniques, the bottom line is that the time the employer pays the employee belongs to the employer.  If the employee is doing the job that he or she is paid to do, there should be minimal concern over whether the employer is utilizing any of these techniques absent abuse from the employer.