7. Workplace Privacy: In the Workplace, Everybody Knows If You're a Dog

This week we look at a very old problem with which most people are familiar—workplace monitoring. Unlike the previous weeks, the question here is not if a person should have privacy, but how much employers can invade the privacy of their employees.

• History of Workplace Privacy
  “Work monitoring is not new,” reported the Office of Technology Assessment over a decade ago. Indeed, workplace monitoring has been synonymous with the industrial revolution and has carried over into today’s service industries. Courts consistently have allowed electronic monitoring in the workplace. Report after report has detailed the practice, but little has changed over the decades. (details)
• Current U.S. Statutory Law
  The Electronic Communications Privacy Act of 1986 (ECPA) is the only federal statute that applies to electronic monitoring; the statute provides several exceptions for electronic workplace monitoring. Note that the U.S. Constitution, and every state constitution except for the California Constitution, only applies to state action and thus does not apply to private employers. (details)
• Current U.S. Case Law
  Two recent cases found no invasion of privacy when employee e-mails were intercepted. In one case, the court held that the ECPA did not apply. In another case, the court held that the employee had no “reasonable expectation of privacy.” A third case held that continuous video surveillance of employees did not violate the Constitution. (details)
• Proposed Legislation
  In 1993, the Privacy for Consumers and Workers Act was proposed in Congress, but that legislation was not passed and succeeding Congresses have not introduced any comparable legislation. (details)
• Company Policies
  If an employer makes its monitoring policy widely known, the employer escapes most, if not all, legal liability. For this reason, employers have an incentive to explicitly reserve the right to monitor all telephone calls, e-mail messages, and Internet usage. (details)
• News Stories
  The press details the competing interests at stake:  productivity vs. privacy, free speech vs. hostile work environment, working at home vs. working in the office, etc. (details)
• Privacy in Cyberspace:  Is Your E-mail Safe from the Boss, the SysOp, the Hackers, and the Cops? (1996) (details)
• Privacy in Cyberspace:  Is Your E-mail Safe from the Boss, the SysOp, the Hackers, and the Cops? (1996) (details)
• ACLU, The Rights of Employees (1996) (details)
• ACLU, Surveillance, Incorporated:  American Workers Forfeit Privacy for a Paycheck (1996) (details)
• Mark S. Dichter & Michael S. Burkhardt, “Electronic Interaction in the Workplace:  Monitoring, Retrieving and Storing Employee Communications in the Internet Age,” The American Employment Law Council Fourth Annual Conference, Oct. 1996 (details)
• U.S. Congress, Office of Technology Assessment, The Electronic Supervisor:  New Technology, New Tensions (1987) (details)
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• Discussion: Hypothetical
  

  Start: May 4, 1999 - 12:00:00 AM (midnight Monday),
  End: May 11, 1999 - 12:00:00 AM (midnight Monday)

  (details)
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