Office privacy and the pitfalls


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Office privacy and the pitfalls

  1. 1. 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 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 environment.” 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
  2. 2. 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 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 limits. 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 Fourth Amendment.” 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 employer's business. 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
  3. 3. the impact his or her private life may have on the workplace, among other factors. 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 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 monitoring. 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,
  4. 4. 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 (609) 683-0313 Web: 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”