Eyes are Watching
Electronic Workplace Monitoring
By
Nicki Jhabvala
Casena Leazer
HISTORY 101 … abridged
Better technology =
Greater Communication =
More commonly used =
Greater need for regulation
HISTORY 101 … abridged
For businesses,
regulation is with
electronic monitoring
Forms of Monitoring
o E-Mails
oVideo Surveillance
oVoice Recording
oTelephone Recording; Retrieving Voicemails
oGPS Tracking
oKeystrokes
oWeb sites visited
oTwo-way mirrors
oWiggles
A Few Numbers
AMA Survey of 526 American Companies
~75% of companies use some form of monitoring
60% use software to monitor e-mails and IM’s
51% monitor time spent on company phones &
the number of outgoing calls made
51% use video surveillance in the office
8% use a GPS system to monitor company car
5% monitor company provided cell phones
Put it Into Perspective
•Those 51% who monitor phone calls … yeah,
well it used to be only 9% in 2001.
•And those 51% who use video surveillance …
was 33% in 2001.
•26% have fired their employees for misusing
internet …ouch.
The Debate
Where is the line drawn
between an employee’s
right to privacy and an
employer’s right to regulate
the company?
Staffer’s Side
Simply working for someone does
not give them the right to intrude
upon basic human rights and
common courtesies.
WHY?
•(1) Trust: hiring implies mutual trust
•(2) Personal things: some things an employee may do at work
are for personal reasons and, frankly, none of an employer’s
business
•(3) Necessity: not all forms of monitoring are necessary or
relevant to company business
•(4) Less Restrictive Means: If an employer is trying to foster
productivity and maintain company loyalty, there are better ways of
going about doing that.
•(6) Discrimination: acts of retaliation against employees
•(5) Stress: creates an unpleasant environment at work
Constitutional Protections
•The constitutions of 8 states explicitly protect privacy and offer
greater protection of the rights of public employees than the U.S.
Constitution does.
•However, these documents protect public employees and the
protection does not extend to the private sector.
•Exception: California. It has extended its state constitution's
protection of privacy to private AND public employees
•In Short: Not much constitutional protection for
employees that is clearly and explicitly stated.
The Boss-man’s Side
If an employee is under the
umbrella of an employer either
by physical location or through
use of company equipment,
employers have every right to
monitor the behavior of its
employees.
Why?
•(1) Electronic Communications Act of 1986 = OVERRULED!
•Established before internet, so it’s obsolete
•(2) Today’s Common Law: if you are using anything that is owned
by the company, and employee should have no expectations of privacy
•(3) Prevention & Loyalty: don’t want company info from being
leaked
•(4) Keeping Tabs: when they’re on the clock, employees to be doing
work
•(5) Fend off Litigation: explicit proof for when an employee sues an
employer
•(6) Federal Example: if the govt. can do it, I can too
Law is on the Boss-Man’s Side
Can my employer listen to my phone calls
at work?
In most instances, YES!
Only when all speakers are in California must consent be required for recording.
Law is on the Boss-Man’s Side
If I wear a walkie-talkie headset, are my
conversations with co-workers subject to
monitoring?
YES!
Law is on the Boss-Man’s Side
Can my employer obtain a record of my phone
calls?
YES!
Law is on the Boss-Man’s Side
Is my employer allowed to see what is on my
terminal while I am working?
Generally,YES!
An Exception would be Union Contracts where state law doesn’t
supercede them.
Law is on the Boss-Man’s Side
Is electronic mail private? What about
voice mail?
NO!
Not if sent or received from a company computer!
Law is on the Boss-Man’s Side
When I delete messages from my terminal, are
they still in the system?
Yessirreee!
Law is on the Boss-Man’s Side
My employer's electronic mail system has
an option for marking messages as
"private." Are those messages protected?
NOPE!
Law is on the Boss-Man’s Side
What about my employer's promises
regarding e-mail and other workplace
privacy issues. Are they legally
binding?
Ummm ….
NO!
Boss-Man’s Bottom Line
Your purpose at work is to work.
Read the company manual and
make sure you are not violating
any rules because your boss is
watching.
Your purpose at work is to work. Read the company manual and make sure you
are not violating any rules because your boss is watching.
Case Study (2001)
•An employee was arrested after a co-worker found him
looking at pornographic sites at work
•After arrested, company searched his computer files
and e-mails and found nude/semi-nude photos of his 10year-old stepdaughter, which he used to gain access to a
child porn site and e-mails he sent to others regarding
child pornography
•Mother of 10-year-old sued the company because she
felt they did not do a good job of catching the employee’s
activities earlier
•MOM WON, Company learned from mistake AKA now
uses electronic monitoring
Cramer v. Consolidated Freightways
•Consolidated installed secret video taping and two-way
mirrors in bathrooms to catch employees using illegal
drugs.
•Lloyd Cramer and other employees of Consolidated sued
for invasion of privacy
•Employees and Consolidated part of collective bargaining
agreement that covered the uses the employer could make
of video cameras to discipline or discharge an employee
•California prohibits two-way mirror surveillance
•CONSOLIDATED LOST
•Effect of Case: company contractual agreements are preempted by state laws and regulations
So What Can You Tell Ma & Pa ?
That your tuition bill is worth every penny …
‘Cause you won some
candy in Jeopardy today!
Jeopardy
Numbers
Forms
Law
Ethics
Reasons
$100
$100
$100
$100
$100
$200
$200
$200
$200
$200
$300
$300
$300
$300
$300
$400
$400
$400
$400
$400
$500
$500
$500
$500
$500
Final Jeopardy
$100 Question from
Numbers
According to the 2005 AMA Survey,
the percentage of American
companies use some form of
monitoring.
$100 Answer from
Numbers
What is 75 percent?
$200 Question from
Numbers
According to the 2005 AMA
Survey, this percentage of American
businesses monitor company cars
with a GPS System.
$200 Answer from
Numbers
What is 8 percent?
$300 Question from
Numbers
According to the 2005 AMA Survey,
this percentage of American
businesses use video surveillance.
$300 Answer from
Numbers
What is 51 percent?
$400 Question from
Numbers
According to the 2001 AMA survey,
this percentage of American businesses
used video surveillance.
$400 Answer from
Numbers
What is 33 percent?
$500 Question from
Numbers
According to the 2005 AMA survey,
this percentage of American businesses
actually fired those employees who misused
the Internet.
$500 Answer from
Numbers
What is 26 percent?
$100 Question from
Forms
This is the most commonly
used form of electronic monitoring.
$100 Answer from Forms
What is e-mail monitoring?
$200 Question from
Forms
In Cramer v. Consolidated, the
defendant was accused of using this
type of electronic monitoring.
$200 Answer from Forms
What is video surveillance
OR
Two-way mirrors?
$300 Question from
Forms
Keeping tabs on an employee in the
restroom is often done with this type
of monitoring.
$300 Answer from Forms
What is video surveillance.
$400 Question from
Forms
If you decided to use the company car to take
your date out to dinner, I could hunt you down
with this form of monitoring.
$400 Answer from Forms
What is GPS tracking?
$500 Question from
Forms
If you called your mommy, I could easily
monitor your call with this.
$500 Answer from Forms
What is telephone recording?
$100 Question from Law
True or False: If you was your employer and
you used the company’s computer, I could
keep track of your e-mails from the computer.
$100 Answer from Law
What is TRUE?
$200 Question from Law
This act was basically useless in terms of
regulating the Internet.
$200 Answer from Law
The Electronic Communications Act
$300 Question from Law
True or False: If you were my employee,
you could sue me for invasion of privacy
if I monitored your telephone calls from
the company’s phone.
$300 Answer from Law
What is FALSE?
$400 Question from Law
True or False: Just because your e-mails
are labeled as “private,” they really aren’t.
$400 Answer from Law
What is TRUE?
$500 Question from Law
True or False: The 8 state constitutions that
explicitly protect individual’s workplace
privacy generally serve private employees only.
$500 Answer from Law
What is FALSE?
Public only.
$100 Question from Ethics
This is the main argument employees
have with electronic monitoring in the
workplace.
$100 Answer from Ethics
What is Privacy?
$200 Question from Ethics
True or False: Most people are OK
with their employers tallying their
trips to the restroom.
$200 Answer from Ethics
What is “Dunno, whatever floats your
boat, I guess.”
$300 Question from Ethics
True or False: Companies believe they
have a right to maintain control of
business operations.
$300 Answer from Ethics
What is True?
(generally)
$400 Question from Ethics
According to most employees, being
hired implies this.
$400 Answer from Ethics
What is trust?
$500 Question from
Ethics
Monitoring that serves as an act of
retaliation against employees is
commonly considered to be this.
$500 Answer from Ethics
What is discrimination?
$100 Question from
Reasons
One reason companies give for
using monitoring is that it provides
explicit proof for this.
$100 Answer from
Reasons
What is fending off litigation?
$200 Question from
Reasons
One reason companies give for using
monitoring is that these people use it.
$200 Answer from
Reasons
What is the Federal Government?
$300 Question from
Reasons
A reason employees give for opposing
monitoring is that it is not the least of this
type of means.
$300 Answer from
Reasons
What is restrictive?
$400 Question from
Reasons
This type of law allows employers to
monitor their employees in the workplace.
$400 Answer from
Reasons
What is Common Law?
$500 Question from
Reasons
Most employees argue that monitoring
creates this in the workplace.
$500 Answer from
Reasons
What is stress?
Final Jeopardy
This person has the greatest legal weight
(as of now) in the debate of electronic
monitoring.
Final Jeopardy Answer
Who is Boss Man?
Other accepted answers:
Boss Lady
Employer
BMOC
Head Honcho
Man in Charge
Top Dog
Big Shot