Workplace Privacy and Employee Monitoring: Laws and Methods

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 CONTENTS

LIST OF ILLUSTRATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

GLOSSARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MONITORING 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

METHODS OF MONITORING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

Computer Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Video Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Audio Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

EFFECTS OF WORKPLACE MONITORING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

WORK CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iii

LIST OF ILLUSTRATIONS

Figure 1. Growth of Social Media in a Timeline by Age Group (2005-2010) . . . . . . . . . . . . . . . . . . 1

Figure 2. Daily Visitors Chart and Evolution of Social Networks over the Years (2004-2011) . . . . 1

Table 1. Somatic Health Complaints of Monitored and Unmonitored Employees (1992) . . . . . . 5

iv

GLOSSARY

GPS Global Positioning Satellite

GLB Graham-Leach-Bliley Act

Somatic Pertaining to the body

Psychosomatic Involving both the mind and body

Musculoskeletal Concerning the bones and muscles

1

INTRODUCTION

Since the 21st century began, we have seen a tremendous rise in technology use within
the workplace, including the use of; computers, cell phones, tablets, and televisions. With this
big boom of technology comes great responsibility, especially in the workplace. Employers
always want to make sure that their employees are working hard and doing what they are
supposed to be doing, not going on social networking sites or playing games. “A 2007 survey by
the American Management Association and the ePolicy Institute found that two-thirds of
employers 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 few
years. It is looked at to be a leading distraction within the workplace that causes employees to
not follow work protocol due to its rapid increase in user visits (see Figure 1 & 2). With all of
this technology at the employee’s finger tips, where do we draw the line at? In order to find the
answer to that question, we must first understand the laws and methods behind this growing
problem as well as what companies have experienced previously when dealing with employee
monitoring 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)

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MONITORING LAWS

Due to the increase of workplace monitoring, the laws for these actions have been
rapidly growing. With there being a rapid increase, a lot of states have had their own types of
laws on the matter. Some of the states that have certain laws which are contoured to
workplace monitoring include; California, Connecticut, Colorado, North Dakota, and New York.
All of the previously listed states have laws that prohibit employers from disciplining an
employee based on off-duty activity on social networking sites, unless the activity can be shown
to damage the company in some way. Most companies today have their own written rules of
monitoring within the workplace. They will usually have the rules and regulations written in the
company handbook, by giving the monitoring policy information out to the employees, they are
responsible for any policy that is broken. With so many unanswered questions about
monitoring 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 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. (Clearinghouse 2)

Computer Monitoring: Having access to monitoring software allows employers to easily
monitor employees, but is it legal? Yes, employers are allowed to use monitoring software so
that they can ensure the security of their company’s private records. Employers may also be
able to see what is on an employee’s computer while they are working, although, public sector
employees 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 the
contents of the messages.

Employer-Provided Tools: Tools such as smartphones or laptops may be monitored by the
employer if it was provided by the employer. As an employee you should assume that any
electronic device provided by an employer may be subject to monitoring, whether or not such a
device 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. Some
courts have even extended the GPS tracking to be allowed onto employee-owned cars.
(Clearinghouse 4)

3

Social Media Monitoring: Depending upon the policies that the employer and the State Law
have in place, the employee can or cannot be subjected to a dismissal from the company. Many
companies have social media policies that limit what you can and cannot post on social
networking sites about your employer.

Video Monitoring: For the most part, employers are allowed to use video monitoring in the
workplace because it is a common method of deterring theft, maintaining security and
monitoring 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 or
bathroom.

Workplace Privacy Protections: Usually, when an employer states a policy regarding any issue
in the workplace, including privacy issues, that policy is legally binding, although sometimes
that is not necessarily the case. Currently there are very few laws dealing with workplace
privacy, however, with the rapidly changing laws on monitoring in the workplace we could see
some new laws within the next year or two.

Although there are laws that protect the employee’s rights and freedom, there are also laws
that protect the company’s right to security; Graham-Leach-Bliley Act (GLB) and Federal
Legislation Requirements.

GLB: The Financial Services Modernization Act of 1999, which removed barriers in the market
among companies that prohibited any one institution from acting as any combination of an
investment bank, a commercial bank, and an insurance company.

Federal Legislation Requirements: In order to safeguard records the Federal Legislation
requires organization to protect personal information. Monitoring can determine the extent of
compliance 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 just
about everywhere. Why? Because the national crime rate has worsened over the years and
online security theft is one of the most deadly crimes in the 21st century. In order to keep
confidential information safe, workplaces must monitor their entire facility so that they don’t
get robbed. Not only do companies have to worry about information security, but they also
need to worry about their employees staying on task and doing their jobs. With social media
and easy to access internet sites, employers’ jobs have become more about employee

4

surveillance rather than information security. Some methods that would help companies
monitor these types of issues would include; several types of computer software, video
surveillance, and audio surveillance.

Computer Software: The software most employers use is "Websense," which tracks an
employees’ use of the Internet and "MIMEsweeper," which spies on email use. (UE 1) These
programs allow the company to keep a firm eye on their employees to make sure that they
aren’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 of
electronic spying on employees. With video surveillance being an easy to use tool for spying
and 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 type
of monitoring system in the workplace.

Audio Surveillance: Since companies have the ability to listen in on calls that are from the
workplace, this allows for a great advantage while overseeing employees. Having the ability to
monitor conversations is a great way to catch an employee off guard. Audio surveillance can be
done 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 their
employees do and don’t do, there are several negative and positive effects on the companies
and 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 the
continuation of workplace monitoring companies could begin to see more injury related
illnesses pertaining to workplace monitoring than any other type of illness. These negative
impacts on employees can greatly hurt their overall health and job satisfaction, which may even
lead 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 be
wiser to cut down on the workplace monitoring? In a research experiment in 1992, monitored
workers reported more somatic health complaints: musculoskeletal, psychological, and
psychosomatic 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 monitoring
begins to become cloudy. However, there are plenty of positive motives behind monitoring in the
workplace; creates a more secure network for the companies’ valued information, increase productivity
by helping employees figure out how to do tasks quicker through computer monitoring, may help lessen
employees 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 our
workforce 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 an
uncomfortable environment for employees. Being under a watchful eye is tough because it puts
more stress on your body and stress is a body killer. After finally understanding these laws, or at
least 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 a
watchful eye and be sure to have state of the art technological defenses so that their
confidential information is never stolen, but constantly weighing down the pressure of perfectly
working 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 stress
levels caused by the whole big brother system. Employees should be given the right to at least
feel free in their work environment.

A type of system should be created to aid in the stress illnesses of employees who are
viciously monitored. It should be some type of reward system, so that the employees have
some 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 on
the monitoring and focus more on the training or motivational aspect of working. Even if the
companies didn’t cut down on the monitoring, they should at least give the employees better
health benefits due to the added stress levels from the monitoring system. Sometime in the
near future, laws need to start coming out to help benefit the working force in the world
because after all this gathered research, there were only a selected few states that supported
employee’s privacy and that was only one law. Times need to change so that we can see better
opportunities as employees and begin to enjoy going to work, not hating it and feeling like a big
brother is watching over for any mistake that an employee makes.

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WORKS CITED

Kanalley, 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 (UE's 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>.

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