Office Privacy Pitfalls
By Chelse Benham
“The expectation of privacy in the workplace is often confused with a person's
basic human rights. But to mention privacy and work in the same breath is a
misnomer.” – Mary-Catherine Flood in “Management Issues” at
If you feel an ever growing encroachment on your privacy from your employer
there may be good reason. Some companies make inquiries into employee’s off-
duty lives, maintain mandatory drug testing, use surveillance cameras and
monitor employee e-mail in the name of security.
A “2001 Workplace Monitoring And Surveillance: Policies And Practices”
survey, conducted by American Management Association in conjunction with
U.S. News & World Report located at www.amanet.org found that “legal liability
(especially regarding ‘hostile workplace environment’ concerns) is the primary
rationale for checking employee e-mails, computer files and Internet
connections.” More astonishing is the dramatic increase, within a single year, of
“active monitoring” being done within companies. The study found the number of
companies conducting some form of monitoring of their employees had jumped
from 45 percent in 1998 to 74 percent in 1999. E-mail monitoring rose from 27 to
38 percent over the same period.
“In our ‘Succeed in the Workplace’ workshop we stress that students need to
focus on their career, their job and work culture. We tell people to keep the work
environment professional,” said Lourdes Servantes, placement specialist at The
University of Texas-Pan American’s Career Placement Services Office. “Be
mature and professional at all times and keep all relationship items, sweet-talk,
public-display-of-affection and inappropriate behavior, away from the work
The National Security Agency (NSA) is one of the most secretive branches of the
United States intelligence agencies. The NSA is America’s cryptologic
organization. It coordinates, directs and performs highly specialized activities to
protect U.S. information systems and produce foreign intelligence information.
NSA is instrumental in the research and development of highly sophisticated
technologies used to protect all classified and sensitive information that is stored
or sent through U.S. government equipment.
In the last few years, NSA’s clandestine computer and communications
technologies have been released to private companies who have adapted the
organization’s technology. Such is the case with defense contractor Raytheon.
New products such as Raytheon's SilentRunner allow companies to monitor
absolutely everything passing over their network, from e-mails to instant
messages, in any language without the end user's knowledge.
In Jeffrey Benner’s article “Privacy at Work? Be Serious Drawing,” found at
www.wired.com he turns to Michael Overly, e-mail guru and policy investigator,
for pertinent advice regarding employee privacy. According to Overly, author of
“E-Policy: How To Develop Computer, E-Policy, and Internet Guidelines to
Protect Your Company and Its Assets,” a worker's right to privacy is technically
protected under state law, but there's a catch.
"All states have a right to privacy based on a 'reasonable expectation of privacy,'"
Overly said in the article. "But the courts have said that if there is a written policy
notifying employees of monitoring, there is no expectation of privacy."
Brenner writes, “This means that if an employee is led to expect something is
private, such as e-mail communications, then that privacy cannot be violated.
But, if a company informs its employees that e-mail sent over the company's
network is monitored, then the employee can no longer claim an ‘expectation of
privacy.’ In short, once a company stakes its claim over its cyber-dominion, its
employees have no right to privacy there.”
“Drawing the Line on Privacy at work” by Jonathan Canter, an attorney and an
editor of the Employment-At-Will Reporter, wrote that employees have several
sources of privacy protection. Employees are protected against "unreasonable"
searches and seizures by the Fourth Amendment. However, he warns there are
At Career Journal Web site, Canter points to the U.S. Supreme Court’s decision
that warrantless drug urinalysis, “when part of a systematic program of random
employee testing in safety-sensitive jobs, or when based on an employer's
‘reasonable suspicion’ about an employee's drug use, doesn't conflict with the
Is what you do on your own time your own business? Not if your employer could
be liable for an employee's off-duty conduct. According to Canter, an employer
who negligently or knowingly hires an incompetent or unfit employee may be
liable to those injured by that employee. Similarly, an employer is expected to
guard against threats to workplace safety. Thus, these responsibilities placed
upon an employer create some general rules regarding employee activities away
from the workplace. Canter gives the following applicable rules:
1. First, under certain circumstances an employee's private life becomes an
2. Second, the scope of an employer's permitted interest in an employee's
private life will depend on the nature of the employee's responsibilities and
the impact his or her private life may have on the workplace, among other
3. Third, an employer could be liable for unreasonably intruding into an
employee's private life and for failing to respond to dangers posed by the
employee's private life.
How far do these intrusions extend? “Employee Monitoring: Is Privacy in the
Workplace?” fact sheet from Privacy Rights Clearinghouse at
www.privacyrights.org gets to the heart of workplace privacy or the lack thereof.
The site offers the following information:
Your employer can monitor your telephone calls. For example,
employers may monitor calls with clients or customers for reasons of
quality control. However, when the parties to the call are all in California,
state law requires that they be informed that the conversation is recorded
or monitored by either putting a beep tone on the line or playing a
recorded message. The Electronic Communications Privacy Act does
allow unannounced monitoring for interstate business-related calls.
However, an important exception is made for personal calls. Under federal
case law, when an employer realizes the call is personal, he or she must
immediately stop monitoring the call. If however, when employees are told
not to make personal calls from specified business phones, the employee
then takes the risk that calls on those phones may be monitored.
Privacy Tip: The best way to ensure the privacy of your personal calls
made at work is to use your own mobile phone, a pay phone or a separate
phone designated by your employer for personal calls.
Your employer can obtain a record of your phone calls. Telephone
numbers dialed from phone extensions can be recorded by a device called
a pen register. It allows the employer to see a list of phone numbers dialed
by your extension and the length of each call. This information may be
used to evaluate the amount of time spent by employees with clients.
If you have a computer terminal at your job, it may be your employer's
window into your workspace. There are several types of computer
Your employer is allowed to see what is on your terminal while your
are working. Since the employer owns the computer network and the
terminals, he or she is free to use them to monitor employees.
How can I tell if I am being monitored at my terminal? Most computer
monitoring equipment allows employers to monitor without the employees'
knowledge. However, some employers do notify employees that
monitoring takes place. This information may be communicated in memos,
employee handbooks, union contracts, at meetings or on a sticker
attached to the computer. In most cases, employees find out about
computer monitoring during a performance evaluation when the
information collected is used to evaluate the employee's work.
Your electronic mail (e-mail) and voice mail are not private. If an
electronic mail system is used at a company, the employer owns it and is
allowed to review its contents. Messages sent within the company can be
subject to monitoring by your employer. This includes web-based e-mail
accounts such as Yahoo and Hotmail as well as instant messages. The
same holds true for voice mail systems. In general, employees should not
assume that these activities are not being monitored and are private.
When I delete messages from my terminal, are they still in the
system? Yes. Electronic and voice mail systems retain messages in
memory even after they have been deleted. Although it appears they are
erased, they are often permanently "backed up" on magnetic tape, along
with other important data from the computer system.
What about my employer's promises regarding e-mail and other
workplace privacy issues. Are they legally binding? Not necessarily.
Usually, when an employer states a policy regarding any issue in the
workplace, including privacy issues, that policy is legally binding.
Are there any laws that deal with workplace privacy? Currently there
are very few laws regulating employee monitoring. If you are concerned
about this issue, contact your federal legislators, especially the members
of the House and Senate Labor committees in Congress. For more
information about privacy rights in the workplace you can contact:
National Work Rights Institute
166 Wall St.
Princeton, NJ 08540
In summary, the best advice, where your privacy is concerned, is to act
professional at all times. If there is any concern or fear that what you are doing or
saying may be used against you then stop the conduct in question. Don’t assume
that you are immune from inquisitive maneuvering from your employer.
"Real privacy as we know it is fleeting." – Carole Lane, author of “Naked in
Cyberspace: How to Find Personal Information Online”