Privacy in the Workplace Introduction Employers are finding that effectively managing a work force is an increasingly time consuming task. Companies who have grown rapidly and whose creative efforts have been directed at developing products or services rather than implementing effective human resource techniques, often find themselves without uniform or concise policies on a multitude of subjects. This is especially true when companies are not large enough to have readily available legal consul or an experienced personnel administrator.
One particular issue that seems to be gaining a lot of attention lately is Privacy in the Workplace. This is primarily due to the competitiveness of business and the advancements of workplace automation (Workplace Privacy, 1998). Many employers now utilize LAN based computer systems, electronic mail, automated phone systems, card access and video systems. Employers now have the capability to monitor, with ease, many of the employee s routines. Employees don t want their privacy infringed upon.
However, unless otherwise specifically stated, employers may have the right to monitor such actions. There are few legislative laws and regulations protecting an employee s privacy rights. However, the present laws are not enough to protect an individual. The issue of privacy rights has gained a great amount of attention from the American Civil Liberties Union, Electronic Messaging Association and the Communications Workers of America. Our research paper will evaluate the variation of topics and issues surrounding Privacy in the Workplace.
Policy Statement You may be wondering, how can my employer invade my privacy and get away with it? Don t I have rights? In most instances the answer is simply no, you don t. While legislation dictates that law enforcement and other governmental agencies almost always require a form of warrant to search personal property or listen to a private phone conversation, the workplace is different. Employers literally have the right to invade a great amount of your personal space. They literally own the office, the phone, the computer, and, most importantly your time, or in a sense you.
An employer can do just about anything to an employee as long as it s not done in a discriminatory manner. It s hard to imagine, as employees, that we have so few privacy rights in the workplace. It s difficult to point out exactly what led to this stage. During the 50s, 60s, 70s, and partial 80s, an employer s value towards their employees was much different. There was a real sense that an employer needed us. During the early 70 s, wages were at an all time high in real dollars. A typical family was able to live on a single income.
A lot has since changed. Good paying jobs are no longer easily found. Since 1973, wages alone have slipped dramatically, with the exception of the last 18 months (Workplace Privacy, 1998). An employers and employees relationship has changed dramatically, mainly due to advancements in automation, corporate consolidations, and the markets competitiveness. In addition, employers have outsourced more and more of their jobs in order to avoid benefits, discourage unions, minimize long-term commitments and the ability to, more easily, invade our privacy.
Business owners have stated that they need to infringe on their employee s privacy because of the nature of the business. Operating business costs are at an all time high, employers cannot afford to lose any type of employment lawsuit, and the need to protect trade secrets is vital to the success of a business. Employers are under unprecedented pressure to be productive, explains Lewis Maltby, director of the ACLU s Workplace Rights Office. But instead of responding by empowering their workers to be more creative, they ve cracked down with sweatshop techniques.
It s just like the 1920s, except by electronic means (Privacy in America, 1998). The laws that employers must follow are few. The Federal Wiretapping Act prohibits employers from deliberately eavesdropping on employee s personal telephone conversation. Video monitoring is illegal, however, can easily be justified as security monitoring at the workplace. Drug testing is legal, however, testing is designed to detect and punish conduct that is usually engaged in off-duty and off the employer s premises; that is, in private.
Criminal records are protected under Federal and State Law. An employer can inquire about felony convictions of applicants, and can deny employment upon establishment of a legitimate business purpose. However, an employer, in the state of California, can violate state law if the conviction is not job-related and the policy has a disparate impact upon a protected class. Legislation currently in effect was written without consideration to present technological advances. Present privacy laws have many avenues that an employer can act upon protecting an employer s integrity.
An individual must understand that the constitution does not fully apply to the workplace. In the 18th century, when the Bill of Rights was adopted, the government was seen as a major threat to individual rights. Times have changed. Government seems to be less likely to violate individual rights as opposed to an employer violating employee s rights. In order for an individual to assure that his/her rights are not being violated, he/she must understand the issues surrounding their privacy rights.
We identified 20 different workplace topics that may be encountered prior to, during, or at a conclusion of employment. The following issues may or may not be legally binding from state to state. Topics affecting employment privacy:
1. Psychological tests Employers have the right to perform physiological test to applicants, however, must be justified by a compelling interest. These tests will generally identify an individual personal characteristic such as laziness, propensity to steal, and even sympathy to unions.
2. Polygraphs and Lie detector tests Federal law restricts the use of such test. However, under extremely limited circumstance, such test may be performed on prospective employees of security guard firms, employees involved with handling of controlled substances or current employees involved with a workplace incident resulting in loss or injury to the employers business.
3. Dress and physical appearance standards Employers can impose dress and grooming standards. Such standards cannot be discriminatory and must not significantly burden an individual employee. Standards must apply to both men and women equally.
4. Email monitoring Employers own the email system, therefore, they are allowed to review its contents. This includes incoming, outgoing and inter-company emails. Employers must disclose to employees that they maintain the right to monitor such activity.
5. Telephone/voice mail monitoring Unless company policy specifically states otherwise, employers may monitor phone calls with other employees, clients or customers. Employers have argued that monitoring the quality of phone calls is instrumental to quality control. Recorded or monitored phone calls within the state of California must announce to callers that their conversation may be recorded or monitored. Federal law regulates phone calls within states, which allows unannounced monitoring of phone calls. In either case, whenever an employer realizes that the call is of personal nature the monitoring must immediately cease.
6. Inspection of persons and property Employers reserve the right to inspect employees as well as their personal belongings. Including, but not limited to, desks, lockers, vehicles, articles, etc. Such inspections must be limited while on company property.
7. Computer monitoring Employers own the computer networking equipment at work, therefore, maintain the right to monitor all computer activity. Drug/alcohol testing The State of California has a clear distinction between the rights of a job applicant and the rights of an employee. An employer reserves the right to require applicants to pre-employment drug/alcohol testing. However, drug/alcohol testing to an existing employee can be construed as an invasion to privacy, if not performed to all employees equally. Therefore, drug/alcohol testing to existing employees must be justified, non-discriminatory, legitimate and of important interest.
9. Medical background investigation Medical background information is private. Therefore, employers may not access such records of an applicant or employee without written consent from the individual. However, there are limited circumstances where an employer may require an employee disclose such records in order to ascertain an employee s physical ability to perform a job. For example, an employee may require certain restrictions and work accommodations, or in case of an emergency certain medical conditions may be vital to first aid personnel.
10. Personnel record investigation Privacy of personnel record disclosure to third parties is protected by the California Constitution. Employers have many restrictions of how and what information can be disclosed without written consent of an individual. For example, a former employer may not misrepresent or interfere with a prospective employer s background investigation. A former employer may not volunteer information that may interfere with the employment of a former employee. Employers may be liable if inaccurate or misleading information interferes with the hiring of such individuals.
11. Criminal record investigation Employers are prohibited, under Federal law, from asking a job applicant information concerning an arrest or detention not resulting in a conviction. There are certain exceptions for peace officers, health care workers and persons with access to controlled substances.
12. Financial background investigation Employers may obtain a credit report on an individual for hiring or promotional consideration or in order to check an individuals personal integrity or financial responsibility. In any case, Federal law indicates that when a decision to deny employment is based on information from a credit report, the employer must disclose this fact to the applicant, along with the name and address of the credit bureau making the report.
Privacy Standards A standard outlines what is expected. The main purpose of privacy standards is to answer the question, What is privacy at work? In order to minimize the probability of litigation, an employer must assure that employees who are involved with any aspect of management or human resources be fully aware of the implications that are at risk in regards to privacy related issues. Company and employee handbooks should clearly define the companies position on privacy-related issues.
Employees must understand that the employer has the right to search, monitor and check many of the employees work areas and/or personal effects while at the workplace. Once an employee understands that the employer has the right to invade their privacy, an employee is more likely to understand that his/her privacy is minimized while at work. An employer must implement policies that serve its business needs without infringing on individuals privacy rights. Providing employees with an orientation explaining what the employer expects while at the workplace can be very beneficial.
Written consent from employees acknowledging possible infringement, to areas of concern, is one the best means that an employer can obtain from an employee to assure that everyone understands the employer s privacy position. Record keeping A policy outlining the process of how employee personal files are to be maintained should be implemented. The outline should clearly state who has access to such files. Access to employee files should be restricted and/or minimized to key management personnel within the department. Minimizing access to employee personnel files will reduce the probability of problems.
With the emergence of technology in the workplace, employers must assure that unauthorized access to computer files containing confidential information is guarded. Protection of electronic files is the responsibility of the employer. Employers can be held liable for damages resulting in the release of unapproved personal documents. Training Increasing knowledge through training is one of the best means for employees to fully understand what is expected at the workplace. A comprehensive training program is thereby essential to the success of an employer.
The training program should outline the process of how privacy related issues should be dealt with. The program should address the following concerns:· who is the primary figure responsible for the process · what are the issues of concern· how do you handle a privacy related issue· what is the documentation process· what are the responsibilities of the employer and employee· what information do you release/convey on references Training will give employees the opportunity to talk informally with others, therefore, increasing the awareness of how important the issues really are.
Alternatives Understanding the employers position on what privacy means to the company and abiding by the policies of the employer are obviously the best suggestions to follow. Standard ethics and disciple at the workplace are also good thoughts. However, employers and employees must clearly understand the laws in order to prevent any legal situations.
Major new threats to employee privacy such as, genetic testing and active badge clip-on microcomputers that allow an employer to track a workers movement electronically is just over the horizon. More than ever before, we need new laws to protect our rights to privacy at work. People should not have top give up their rights to fair treatment, guaranteed them by the Bill of Rights, when they walk through the office door. Employees are not pieces of equipment, treating them with dignity and fairness is not inconsistent with good, competitive, management. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy.