Who Read My E-mail?
Employee Privacy in the Electronic Workplace
Modern technology has created tension between the employer's right to control and manage his or her own business, and the employee's right to privacy. Computers, e-mail, voice mail, and the Internet are valuable tools that facilitate efficiency in the workplace. However, these same tools, if used inappropriately, can also lead to reduced worker productivity and to increased discrimination, harassment and hostile work environment lawsuits by employees.
These productivity and employer liability issues have led to the employer's need to monitor employee use of electronic communications. In an effort to maintain their privacy, employees have been legally challenging monitoring by employers in the workplace. Although, the courts have been favoring the employer in these challenges, there are still uncertainties. For this reason and for the sake of workplace harmony, there are measures employers should take to balance their management needs with the privacy rights of their employees.
Is There a Right to Privacy in the Workplace?
The misuse of workplace communication tools can create costly problems for employers. For instance, in discrimination and harassment cases the permanent nature of e-mail has proven to leave a trail of evidence, usually unfavorable to the employer, which is difficult to defend in court. Also, employee access of pornographic Web sites has lead to increased hostile work environment sexual harassment claims by employees. In an effort to protect themselves from liability, employers are monitoring phone calls, voice mail, e-mail, and Internet site access so they can remedy problems before they escalate into litigation. According to an American Management Association study conducted in April 2000, more than two-thirds of employers use some form of employee surveillance.
While new technologies have made electronic monitoring a common practice, the monitoring of employees in the private workplace goes largely unregulated.
On the federal level, the Fourth Amendment of the U.S. Constitution prohibits unreasonable government searches and seizures. However, the Fourth Amendment does not apply directly to private employers. On the state level, only a few states have created constitutional, statutory or common law privacy rights for employees, and those laws are largely unsettled.
Increasingly, the tests developed by the Supreme Court in various Fourth Amendment search and seizure cases are being used in the context of the private workplace. Given the unsettled nature of employee privacy rights law, it is wise for the private employer to follow the dictates of the Fourth Amendment cases. Generally, these cases, as applied to the private employer, suggest that searches and retrieval of employee communications should not be conducted on a whim, but should be of limited scope that is based on reasonable suspicion or legitimate business needs.
Protective Measures
The most important action employers can take to protect themselves from invasion of privacy lawsuits resulting from employee monitoring is to minimize employees' expectations of privacy in the workplace. The best way to accomplish this is by establishing an employee monitoring policy and monitor only for legitimate, business-related reasons. The monitoring policy should be in writing and employees should be given notice of the employer's intent to monitor, the reason for monitoring, and the form of monitoring. A good monitoring policy should address computer, telephone, e-mail, voice mail, and Internet use with the goal of eliminating any employee expectations that these communications are confidential. State privacy laws vary, so consult with an attorney experienced in employment law when drafting an electronic communication usage and monitoring policy.
Balance is Key
While it is critical that employers reduce employees' expectation of privacy in the workplace, a Big Brother atmosphere will breed worker paranoia and will have a negative affect on employee performance and loyalty. Also, rigid policies on the personal use of company communications equipment can lead to employee resentment and turnover. Balancing employee needs with employer productivity and liability needs is key in dealing with the employee privacy issue.
Read this article, as well as other articles and information on Employment Practices Risk Reduction Strategies in the Summer 2002 EmployerGardian Newsletter.
