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Workplace Privacy and Employee Monitoring: Laws and Methods
 

Workplace Privacy and Employee Monitoring: Laws and Methods

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As a final business project we were instructed to develop a business document with research and documentation on a subject dealing with business law. I chose to create a document about workplace ...

As a final business project we were instructed to develop a business document with research and documentation on a subject dealing with business law. I chose to create a document about workplace privacy because it was an interesting topic to me. Understanding these laws and methods after writing this paper allowed me to fully understand the rights and actions that an employee/employer is liable for.

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    Workplace Privacy and Employee Monitoring: Laws and Methods Workplace Privacy and Employee Monitoring: Laws and Methods Document Transcript

    • WORKPLACE PRIVACY Research and Documentation AND EMPLOYEE by MONITORING: LAWS Connor Milliken Assistant Producer AND METHODS Assigned by Professor DiCicco Professional Writing EN215 – 1L Daniel Webster College Is monitoring fair? Should it even be legal? How much of the employers’ October 15, 2012 rights is being violated because of these new employer monitoring tools?
    • ii TABLE OF CONTENTSLIST OF ILLUSTRATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiGLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ivINTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1MONITORING LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 Telephone Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Computer Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 E-Mail Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Employer-Provided Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Social Media Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Video Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Workplace Privacy Protections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Graham-Leach-Bliley Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Federal Legislation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3METHODS OF MONITORING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4 Computer Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Video Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Audio Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4EFFECTS OF WORKPLACE MONITORING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6WORK CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    • iii LIST OF ILLUSTRATIONSFigure 1. Growth of Social Media in a Timeline by Age Group (2005-2010) . . . . . . . . . . . . . . . . . . 1Figure 2. Daily Visitors Chart and Evolution of Social Networks over the Years (2004-2011) . . . . 1Table 1. Somatic Health Complaints of Monitored and Unmonitored Employees (1992) . . . . . . 5
    • iv GLOSSARYGPS Global Positioning SatelliteGLB Graham-Leach-Bliley ActSomatic Pertaining to the bodyPsychosomatic Involving both the mind and bodyMusculoskeletal Concerning the bones and muscles
    • 1 INTRODUCTION Since the 21st century began, we have seen a tremendous rise in technology use withinthe workplace, including the use of; computers, cell phones, tablets, and televisions. With thisbig boom of technology comes great responsibility, especially in the workplace. Employersalways want to make sure that their employees are working hard and doing what they aresupposed to be doing, not going on social networking sites or playing games. “A 2007 survey bythe American Management Association and the ePolicy Institute found that two-thirds ofemployers monitor their employees web site visits in order to prevent inappropriate surfing.And 65% use software to block connections to web sites deemed off limits for employees.”(Clearinghouse 1) Social networking has been a main concern for employers over the past fewyears. It is looked at to be a leading distraction within the workplace that causes employees tonot follow work protocol due to its rapid increase in user visits (see Figure 1 & 2). With all ofthis technology at the employee’s finger tips, where do we draw the line at? In order to find theanswer to that question, we must first understand the laws and methods behind this growingproblem as well as what companies have experienced previously when dealing with employeemonitoring in the workplace. FIGURE 1 (Left) • Growth of Social Media in a Timeline by Age Group (2005-2010) (Kanalley 1) FIGURE 2 (Right) • Daily Visitors Chart and Evolution of Social Networks over the years (2004-2011) (Kanalley 1)
    • 2 MONITORING LAWS Due to the increase of workplace monitoring, the laws for these actions have beenrapidly growing. With there being a rapid increase, a lot of states have had their own types oflaws on the matter. Some of the states that have certain laws which are contoured toworkplace monitoring include; California, Connecticut, Colorado, North Dakota, and New York.All of the previously listed states have laws that prohibit employers from disciplining anemployee based on off-duty activity on social networking sites, unless the activity can be shownto damage the company in some way. Most companies today have their own written rules ofmonitoring within the workplace. They will usually have the rules and regulations written in thecompany handbook, by giving the monitoring policy information out to the employees, they areresponsible for any policy that is broken. With so many unanswered questions aboutmonitoring policy, what rights do employers and employees have?Telephone Monitoring: Employers are allowed to obtain a record of an employee’s phone calls,as well as monitor a conversation between co-workers if one of them is wearing a headset.Also, in most cases employers are allowed to listen to phone calls at work, however, a Californiastate law requires that they be informed that the conversation is recorded or monitored byeither putting a beep tone on the line or playing a recorded message. (Clearinghouse 2)Computer Monitoring: Having access to monitoring software allows employers to easilymonitor employees, but is it legal? Yes, employers are allowed to use monitoring software sothat they can ensure the security of their company’s private records. Employers may also beable to see what is on an employee’s computer while they are working, although, public sectoremployees may have some minimal rights under the United States Constitution.E-Mail Monitoring: In most cases, e-mail and voice mail recordings are not considered private,especially if it is a system used by the company because they would have the rights to thecontents of the messages.Employer-Provided Tools: Tools such as smartphones or laptops may be monitored by theemployer if it was provided by the employer. As an employee you should assume that anyelectronic device provided by an employer may be subject to monitoring, whether or not such adevice is specifically mentioned in a written policy. If the tool given by the employer is a car,then the employer has the right to use GPS devices to track employees within that car. Somecourts have even extended the GPS tracking to be allowed onto employee-owned cars.(Clearinghouse 4)
    • 3Social Media Monitoring: Depending upon the policies that the employer and the State Lawhave in place, the employee can or cannot be subjected to a dismissal from the company. Manycompanies have social media policies that limit what you can and cannot post on socialnetworking sites about your employer.Video Monitoring: For the most part, employers are allowed to use video monitoring in theworkplace because it is a common method of deterring theft, maintaining security andmonitoring employees. There are some instances in which video monitoring is not allowed;where the monitoring has been physically invasive, such as hidden cameras in a locker room orbathroom.Workplace Privacy Protections: Usually, when an employer states a policy regarding any issuein the workplace, including privacy issues, that policy is legally binding, although sometimesthat is not necessarily the case. Currently there are very few laws dealing with workplaceprivacy, however, with the rapidly changing laws on monitoring in the workplace we could seesome new laws within the next year or two.Although there are laws that protect the employee’s rights and freedom, there are also lawsthat protect the company’s right to security; Graham-Leach-Bliley Act (GLB) and FederalLegislation Requirements.GLB: The Financial Services Modernization Act of 1999, which removed barriers in the marketamong companies that prohibited any one institution from acting as any combination of aninvestment bank, a commercial bank, and an insurance company.Federal Legislation Requirements: In order to safeguard records the Federal Legislationrequires organization to protect personal information. Monitoring can determine the extent ofcompliance with company policies and programs overseeing information security. (Wakefield 3) METHODS OF MONITORING In today’s society there is always camera surveillance and monitoring going on justabout everywhere. Why? Because the national crime rate has worsened over the years andonline security theft is one of the most deadly crimes in the 21st century. In order to keepconfidential information safe, workplaces must monitor their entire facility so that they don’tget robbed. Not only do companies have to worry about information security, but they alsoneed to worry about their employees staying on task and doing their jobs. With social mediaand easy to access internet sites, employers’ jobs have become more about employee
    • 4surveillance rather than information security. Some methods that would help companiesmonitor these types of issues would include; several types of computer software, videosurveillance, and audio surveillance.Computer Software: The software most employers use is "Websense," which tracks anemployees’ use of the Internet and "MIMEsweeper," which spies on email use. (UE 1) Theseprograms allow the company to keep a firm eye on their employees to make sure that theyaren’t doing anything suspicious that could potentially harm the company in the end.Video Surveillance: The latest surveys show that 67 percent of employers use some form ofelectronic spying on employees. With video surveillance being an easy to use tool for spyingand monitoring more companies should have them to protect them from unwanted enemies.The major advantage of video surveillance is that it is objective because it will never tell a lie.Whatever is caught on tape is the real evidence, which makes video surveillance a leading typeof monitoring system in the workplace.Audio Surveillance: Since companies have the ability to listen in on calls that are from theworkplace, this allows for a great advantage while overseeing employees. Having the ability tomonitor conversations is a great way to catch an employee off guard. Audio surveillance can bedone by tapping phone calls or just calling in as a customer under a fake alias. EFFECTS OF WORKPLACE MONITORING Although the industries in the world would like to have control over what theiremployees do and don’t do, there are several negative and positive effects on the companiesand employees that are affected by the implementation of monitoring tactics in the workplace.Several negative effects include psychological issues as well as high levels of stress. With thecontinuation of workplace monitoring companies could begin to see more injury relatedillnesses pertaining to workplace monitoring than any other type of illness. These negativeimpacts on employees can greatly hurt their overall health and job satisfaction, which may evenlead to an employee’s inability to get work done. “A study was recently done by the University of Wisconsin on the increase of stress brought on by monitoring employees. They studied AT&T and other phone company employees throughout the United States. The study included employees who knew they were under continuous monitoring and those not being monitored. The study showed that among the employees who were being spied upon there was a 27% increase in pain and stiffness in shoulders; a 23% increase in neck pressure and a 21% increase in back pain. Although monitoring employees may get them to work faster, the study found that it also increased medical costs to the employer.” (UE 2)
    • 5 With the effects of stress hurting both the employer and the company, wouldn’t it bewiser to cut down on the workplace monitoring? In a research experiment in 1992, monitoredworkers reported more somatic health complaints: musculoskeletal, psychological, andpsychosomatic problems (See Table 1). (Levy 6) CONCLUSION TABLE 1 (Above) • Somatic Health Complaints of Monitored and Unmonitored Employees (1992) (Levy 6)While looking at the negative side of monitoring in the workplace, the positive aspect of monitoringbegins to become cloudy. However, there are plenty of positive motives behind monitoring in theworkplace; creates a more secure network for the companies’ valued information, increase productivityby helping employees figure out how to do tasks quicker through computer monitoring, may help lessenemployees habit of surfing the web or messing around and not doing their job. Either way you look at it,there will be great outcomes and great drawbacks for both the employees and the company.
    • 6 CONCLUSION With groundbreaking technology comes great responsibility. The future of ourworkforce will always be continually watched under a keen eye from their supervisors;however, it is the technology aspect of the workplace monitoring system that may provide anuncomfortable environment for employees. Being under a watchful eye is tough because it putsmore stress on your body and stress is a body killer. After finally understanding these laws, or atleast what laws we have for this topic, it is clear that workplace monitoring is not only un-healthy, but goes against our fourth amendment and our privacy. Companies should keep awatchful eye and be sure to have state of the art technological defenses so that theirconfidential information is never stolen, but constantly weighing down the pressure of perfectlyworking without screwing up is hard for any human. Work creates enough stress as it is,workplace monitoring could potentially injure somebody fatally just due to the high stresslevels caused by the whole big brother system. Employees should be given the right to at leastfeel free in their work environment. A type of system should be created to aid in the stress illnesses of employees who areviciously monitored. It should be some type of reward system, so that the employees havesome privacy of their own because it isn’t right to take away someone’s own feeling of self-control. If any plan should be implemented in the future then companies should cut down onthe monitoring and focus more on the training or motivational aspect of working. Even if thecompanies didn’t cut down on the monitoring, they should at least give the employees betterhealth benefits due to the added stress levels from the monitoring system. Sometime in thenear future, laws need to start coming out to help benefit the working force in the worldbecause after all this gathered research, there were only a selected few states that supportedemployee’s privacy and that was only one law. Times need to change so that we can see betteropportunities as employees and begin to enjoy going to work, not hating it and feeling like a bigbrother is watching over for any mistake that an employee makes.
    • 7 WORKS CITEDKanalley, Craig. "The Growth of Social Media (INFOGRAPHIC)." The Growth of Social Media(INFOGRAPHIC). The Huffington Post, 1 Sept. 2011. Web. 15 Oct. 2012. <http://www.huffingtonpost.com/2011/09/01/growth-social-media- infographic_n_945256.html>.Levy, Michael. "ELECTRONIC MONITORING IN THE WORKPLACE: POWER THROUGH THE PANOPTICON." ELECTRONIC MONITORING IN THE WORKPLACE: POWER THROUGH THE PANOPTICON. N.p., n.d. Web. 15 Oct. 2012. <http://besser.tsoa.nyu.edu/impact/s94/students/mike/mike_paper .html>.Privacy Rights Clearinghouse. "Fact Sheet 7: Workplace Privacy and Employee Monitoring." Workplace Privacy and Employee Monitoring | Privacy Rights Clearinghouse. Privacy Rights Clearinghouse, Mar. 1993. Web. 8 Oct. 2012. <https://www.privacyrights.org/fs/ fs7-work.htm>.UE. "Workplace Surveillance." Workplace Surveillance (UEs Information for Workers). UE, n.d. Web. 15 Oct. 2012. <http://www.ueunion.org/stwd_corcam.html>.Wakefield, Robin L. "Computer Monitoring and Surveillance." Computer Monitoring and Surveillance. Ed. The CPA Journal. CPA Journal, July 2004. Web. 8 Oct. 2012. <http://www.nysscpa.org/ cpajournal/2004/704/essentials/p52.htm>.