Electronic Privacy Information Center  

Workplace Privacy

Introduction| News | Surveys and Reports | Legislation | Cases | Resources | Surveillance Technologies

Introduction

Workers of the world are exposed to many types of privacy-invasive monitoring while earning a living. These include drug testing, closed-circuit video monitoring, Internet monitoring and filtering, E-mail monitoring, instant message monitoring, phone monitoring, location monitoring, personality and psychological testing, and keystroke logging. Employers do have an interest in monitoring in order to address security risks, sexual harassment, and to ensure the acceptable performance of employees. However, these activities may diminish employee morale and dignity, and increase worker stress.

The Modern Challenge of Workplace Privacy

While gone are the days where Henry Ford would inspect the homes of workers, employers have new means to acquire information about employees, and these new means require a reevaluation of basic fairness in the employee-employer relationship.

Many workers are not protected with due process guarantees against arbitrary discharge. Absent state law or contract, employers can often dismiss an employee for any reason, or no reason, even if the decision to terminate is based on false information.

At the same time, increased employee monitoring powers raise the risk that false inferences can be drawn about employee contact. An employee network monitoring appliance can detect access to the inappropriate site, but not the intent of the employee. With these new monitoring tools and potential to draw false inferences, it is important now more than ever for employees to have basic due process protections--the right of notice of the violation and some "opportunity to be heard."

This field is also nuanced. Employees may desire medical screening, including genetic screening, prior to employment. For instance, in certain workplaces, it is possible to screen an employee for predispositions to disease that may be exacerbated by the presence of chemicals essential to the business. Similarly, background checks are often appropriate for positions of trust, such as a police officer, but not appropriate for jobs unrelated to public safety or the handling of very large sums of money.

In the United States and many third-world countries, workers have very few privacy protections in law. There are few situations where an employee has a due process right to access, inspect, or challenge information collected or held by the employer. There are a patchwork of state and federal laws that grant employees limited rights. For instance, under federal law, private-sector employees cannot be required to submit to a polygraph examination. However, there are no general protections of workplace privacy except where an employer acts tortiously--where the employer violates the employee's reasonable expectation of privacy.

European employers are bound by comprehensive data protection acts that limit and regulate the collection of personal information on workers. These laws specifically call for purpose and collection limitations, accuracy of data, limits on retention of data, security, and protections against the transfer of data to countries with weaker protections. These protections place employees on a more equal footing while allowing employers to monitor for legitimate reasons.

The ILO Code: The Standard for Workers' Rights

In 1996, the International Labour Organization (ILO) adopted a code of practice on the protection of workers' personal data. The ILO code is regarded as the standard among privacy advocates for protection of workers' privacy rights. The code specifies that workers' data should be collected and used consistently with Fair Information Practices (FIPs). The protections include:

Privacy Journal's Principles for Restricting Surveillance in the Workplace

Robert Ellis Smith, editor of the Privacy Journal, has created a model for US employers that offers strong protections for workers' privacy. Smith's model, which was presented to the Service Employees Union on October, 27, 2000. It calls for annual notice to employees of the monitoring type, purpose, and location, provisions for data destruction, audit trails, and a right of action against an employer for invasion of privacy for violations of the principles.

US Approaches, Legislation, and Protections

In 1977, the Privacy Protection Study Commission (PPSC), which was convened pursuant to the Privacy Act of 1974, issued a report covering workplace privacy. The report recognized that employers collect a broad range of information on workers, and focused on delineating lines of fairness on the collection and use of employee information. It also recognized that much had changed since the development of common law employment norms. America is now longer a country of the self-employed, but rather of employees who do not always have the power to bargain the terms of employment. Quoting the Equitable Life Assurance Society of the U.S., the PPSC's approach recognized that "people with a given employment status…must adhere to many terms of employment set by the organization they work in if they are to work at all."

The PPSC pursued three public policy objectives, and 34 recommendations to meet the objectives. The objections were first, to minimize intrusiveness in hiring, and specifically to reduce the practice of obtaining information about an employee from a third party, such as a credit reporting agency. Second, to maximize fairness, by reducing use of arrest information and ensuring that information collected is accurate, complete, and timely. Third, the PPSC pursued the goal of creating a legitimate and enforceable expectation of confidentiality in employment records.

The Electronic Communications Privacy Act of 1986 (ECPA) is the only federal statute that offers workers protections in communications privacy. ECPA prohibits the intentional interception of electronic communications. However, the ECPA contains loopholes that facilitate employee monitoring. First, employers are permitted to monitor networks for business purposes. This enables employers to listen in on employee phone calls or to view employees' e-mail. Employers may not monitor purely personal calls, however, in order to determine that a call is personal, employers usually have to listen to portions of the employee's conversation. Second, an employer may intercept communications where there is actual or implied employee consent. Consent has been found where there employer merely gives notice of the monitoring.

There have been attempts to increase workers' privacy through new legislation. In 1993, Senator Paul Simon (D-IL) introduced the Privacy for Consumers and Workers Act. The measure would have established a standard for notice, access to information, and use limitations. However, the bill did not leave the committee to which it was assigned. The Notice of Electronic Monitoring Act (NEMA) was introduced by Representative Charles Canady (R-FL) and Senator Charles Schumer (D-NY) in 2000. NEMA would have established a private right of action against employers who failed to give notice of wire or network monitoring. The measure did not leave committee.

Privacy Guidelines for the Workplace - International

EUROPEAN UNION:

AUSTRALIA:

Specific Methods of Worker Surveillance

Remarkably invasive tools exist to monitor employees at the workplace. These include:

Telecommuting

Telecommuters, or employees who labor remotely from the workplace encounter different privacy challenges. For instance, how can the employer monitor the employee's home without impinging upon non-work-related activities? What limits are there to prevent surveillance of the employee during off-hours? What about information collected about non-employee family members who may use work equipment? What about non-work related information on company based home offices? What about tax obligations for home offices that home owners might face? Where is the line between work and personal time? These questions remain unresolved.

Labor Issues - Computer Surveillance

In the United States, restricting employee communications may run afoul of fair labor laws where there is interference with union activities. In Pratt & Whitney, 26 AMR 36322, 12-CA-18446 (Feb. 23, 1998), the National Labor Relations Board (NLRB) reported in an advice memorandum that a company's computer network was a "work area." Accordingly, rules prohibiting all nonbusiness use of e-mail on a company's network could be unlawful. The NLRB has found that policies discriminating against union activity on computer networks run afoul of the National Labor Relations Act (NLRA). Employee monitoring that has the effect of selectively punishing labor organizing activities could violate the NLRA.

Labor Issues - Video Surveillance

Employers increasingly attempt to install hidden surveillance cameras. Recent cases have established a precedent that employers must provide notice to labor unions before installing surveillance cameras in the workplace and employers must provide the opportunity to negotiate and bargain over this action. In the most recent decision, however, the NLRB would not rescind the discipline of employees even if the employers illegally and secretly installed hidden cameras.

Monitoring Public Employees

Government employees do enjoy some protection from searches under the Fourth Amendment. In O'Connor v. Ortega, the Supreme Court extended Fourth Amendment privacy protection to public workplace. In that case, the Supreme Court recognized a reasonable expectation of privacy in the governmental workplace. However, that expectation of privacy can be affected by office policies and practices. The plaintiff employee in O'Connor was found to have had a legitimate expectation of privacy in his desk and file cabinets. But, the rights conferred under O'Connor are narrow. The government still has the right to perform searches that serve interests in promoting efficient operation of the workplace. Government employers can also weaken expectations of privacy by informing employees that they do not have an expectation of privacy, or that their desks, computers, and lockers may be searched.

New Scanners For Tracking City Workers, New York Times,Section B January 23, 2007- In August 2006 the city began using palm scans to monitor Department of Design and Construction employees' entries and exits from work.
Fired Worker Claims Wal-Mart Spying, The Commercial Appeal, Pg. C5, April 5, 2007 - Wal-Mart according to a dismissed employee engaged in a large surveillance operation that spied on company workers, critics, vendors and consultants.

Monitoring of the US Judiciary

One related area of public employment that has been exposed to workplace monitoring is the federal judiciary. In May 2001, a group of US federal court judges learned that their Internet communication was being monitored by court administrators. The judges were troubled by the privacy and confidentiality issues raised by the monitoring. Some judges argued that the monitoring violated the Electronic Communications Privacy Act (ECPA). As a result, the judges disabled the Internet monitoring systems on their networks. A public conflict ensued between judges and the administrators who maintain judicial computers. The administrators wished to reinstate monitoring and adopt a policy giving federal judges and their staff no expectation of privacy in the workplace.

In September 2001, the Judicial Conference, the policy-making body of the federal judiciary, met to resolve the conflict. In anticipation of the meeting, EPIC sent a letter to the Judicial Conference urging the body to end monitoring of judges. The Judicial Conference rejected the administration policy that would have eliminated all expectation of privacy in the workplace. The Conference also voted to end e-mail monitoring of the judiciary. However, the Conference did approve limited monitoring of Internet use and prohibited the use of certain file sharing programs.

News

Surveys and Reports

The American Management Association (AMA) surveys major employers annually to determine the extent of workplace surveillance in the United States. Since AMA started conducting the survey in 1997, prevalence of workplace monitoring has increased every year.

Resources

Resources-International

AUSTRALIA:

BELGIUM/FRANCE:

NETHERLANDS:

CANADA:

SWITZERLAND

Legislation

Selected Cases

Selected Cases-International

EUROPEAN COURT OF HUMAN RIGHTS:

FRANCE:

OTHER CASES:

Workplace Monitoring Technologies

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Last Updated: September 11, 2008
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