Rights to privacy are anchored fundamentally by the Fourth Amendment of the U.S. Constitution which provides against unreasonable searches and seizures in the citizen’s home, but the prohibition applies to government and does not cover every and all places where the citizen spends time. This right has been gradually enlarged, particularly in relation to sexual behavior— and government spying on it—but these developments have little or no bearing on the workplace. The citizen as an employee has rather limited rights to privacy in the workplace. During the hiring process, candidates may not be asked questions relating to sex-related issues, age, race, disability, religion, national origin, and veteran’s status—prohibitions arising from the Civil Rights Act’s anti-discrimination mandates. His or her personnel records at the company are also protected by law and may not be arbitrarily published. With these few exceptions, no rights to privacy exist unless they are actually granted by the employer.
Ever since the wide spread use of the Internet, pressures have been building to expand privacy rights to include private documents and files that may coexist with company files on business computers, but no significant changes in national policy or legislation were on record in the mid-2000s. On the contrary, due to highly publicized corporate scandals (Enron, WorldCom)—and the passage of the Sarbanes-Oxley Act which significantly ratcheted up record-keeping requirements—e-mail had achieved a status as official documentation to be safeguarded for litigation purposes.
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Issues Of Workplace Privacy
Legitimate claims by an employee that his or her privacy has been violated on the job ultimately rest on whether or not the employer, at its option, created a reasonable expectation of privacy by the employee. An employer, for example, who explicitly states in a company policy that all activities on the job must be company-related and private activities must be pursued off-site has by this policy removed such expectations. On the other hand, in a company that lacks such a policy and where it is common for employees to use their break time to do personal tasks at their desks—pay bills and such— a reasonable expectation of privacy may be held up in court. The small business wishing to avoid ambiguous situations is well advised to publish a policy; the policy may prohibit or allow private activities, but if it allows them, then the privacy created by this policy must also be respected.
Employees, on the other hand, are most prudent if they recognize that no privacy rights actually exist and act accordingly. Some of the issues are highlighted next.
Searches and Seizures An employer has the right to inspect personal belongings (bags, purses, briefcases, cars, lockers, desks, etc.), except when the employer has created a reasonable expectation of privacy. These expectations can be raised if the employee is given a key to a desk or if the employer has disseminated a written policy explicitly stating that it will not make such inspections.
Monitoring Computer, E-mail, Internet, and Fax Use Businesses have some significant rights in this regard: they own the equipment. But if these resources are knowingly made available for private employee use then a reasonable expectation of privacy has been created.
Management must therefore refrain from looking at data the employee claims are private. If criminal activity is suspected, appropriate law enforcement officials will, of course, have access to such data.
Monitoring Telephone Calls Companies are allowed to monitor calls to make sure that they are business-related and to record them for training purposes.
Surveillance and Investigation Many surveillance methods (cameras, ID checkpoints, etc.) are legal; so are investigations of employees provided that they are reasonable and undertaken for work-related purposes.
Drug testing These policies have been validated by the courts, although criticism of the practice remains intense in some quarters. Drug testing is a popular measure in many industries, and it is practiced by perhaps 70 percent of large American companies. Furthermore, it is specifically mandated by legislation in the transportation industries. In other industries and for many small businesses, the attitude towards drug testing is quite different. Drug testing can be expensive, disruptive, and unpopular among employees.
Trends And Cycles
As Lucas Conley reported in Fast Company, “In the 1830s, workers at New England’s textile mills lived in company houses, worked in company factories, and worshipped at the company church. Attendance was mandatory. Milton Hershey and Henry Ford are both famous for having hired detectives to keep an eye on their employees outside of work. Ford even created his own sociological department, staffed by 50 inspectors who kept tabs on autoworkers’ behavior off the job.
Misbehave, and your wallet got a little lighter come payday.”
Corporate policies ultimately reflect the general culture on the one hand and changing economic/legal realities on the other—so that permissive and scrutinizing policies have a cyclical nature. The massive economic expansion which began after World War II and has lasted ever since with but a few relatively brief pauses for breath produced an expansive atmosphere with improving benefit packages and the ubiquitous coffee break. Privacy issues have arisen as a consequence of two developments—high rates of illegal drug use since the 1970s and electronic communications since the 1990s. The first led to drug testing, the second—in that it enables employees to use company time to live what amounts to a “virtual” home-life (paying bills, chatting, corresponding, and entertaining themselves with anything at all, including pornography)—to electronic monitoring.
Other forms of invasive contact between employees and their employers, namely searches to detect theft of company property, continued unabated during the entire latter half of the 20th century. Such invasions have not been much remarked upon because the public clearly sees the rationale behind them. E-life on company time, however, appears to fall into another category: it is not viewed as theft.
In the mid-2000s, the trend was decidedly toward “scrutiny,” especially of e-mail and unwelcome smut-files on business computers. Conley reported on this trend citing data from the American Management Association.
In 1997, 15 percent of large U.S. companies monitored the e-mail of their employees; in 1999, the percent had increased to 27, in 2001 to 47, in 2003 to 52 percent.
Because of kibitzing on e-mail, more and more companies are installing automated tracking systems that filter sites visited by people using corporate systems—and alerting the powers-that-be when suspicious sites are frequent destinations.
Technology to do this sort of electronic spying was also improving by leaps and bounds in the mid-2000s.
But the corporate motivations behind such activities were hard to assign unambiguously to spying: the SarbanesOxley Act has rigorously tightened rules on record keeping; courts have ruled that e-mail has the status of real documents. Many new software packages are designed to search e-mail by content in order to archive it by appropriate categories. If in that process abuses of corporate systems are detected, it is not surprising that some companies take corrective action.
Privacy In The Small Business
In a very real sense there is less privacy in a small business (as there is less privacy inside a family) than in larger groupings: employees and their managers interact more; everyone knows everyone else; slacking off by employees is more easily noticed, indeed tends to be felt by others immediately, and, often, slackers are corrected by peer pressure before their offenses ever reach the manager’s or the owner’s attention. In the well-run business, management deals with abuses quickly and effectively. Indeed, from a small business perspective, there is something contemptible about automated tracking systems—or the boss secretly searching through an employee’s desk after work. There are more straight forward ways of dealing with problems.