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WORKPLACE MONITORING

Description of issue. Privacy advocates often use these words to describe the workplace: "You check your privacy rights at the door when you enter the workplace." Ubiquitous employee monitoring is now possible. Many forms of monitoring technologies are available in the marketplace and are becoming cheaper each year: video surveillance, telephone monitoring, e-mail and voice mail monitoring, computer keystroke tracking, Internet website monitoring, location tracking using badges worn by employees, and satellite tracking of the company fleet.

What makes matters worse is that these systems can be deployed secretly and invisibly. Employers are not required by law to disclose to their employees that such monitoring is being conducted, with the exception of Connecticut where a state law requires employer disclosure. Similar legislation has failed in Congress and in the California state legislature. The only places where employees can expect to be free from surveillance are in bathrooms and locker rooms, but even this protection is not absolute.

Looking ahead. The future is here. An American Management Association study found that a majority of employers are conducting some kind of monitoring, the most common being e-mail and web-surfing.

Employers make several arguments to justify their use of monitoring systems.

• The employer owns the systems used by the employees to do their work - primarily the phone and computer systems.
• Employers are responsible for the work product of their employees. Therefore they have a right, even a duty to monitor.
• Employers must guarantee a safe work environment for employees. They must be able to thwart sexual harassment, for example. And if an employee appears to be violent toward other workers, the employer must be able to detect and prevent such violence.
• Employers must be able to detect and prevent the sharing or selling of trade secrets and other matters of corporate intellectual property.

Employers have been successful in making these arguments when aggrieved workers have filed lawsuits for privacy violations. The few court cases have largely been decided in the employers' favor.

Workplace rights advocates recommend that monitoring be relegated to narrow situations where there is "reasonable suspicion," and that random or workplace-wide monitoring be prohibited. Whether a better balance will be adopted by U.S. employers is an open question. Legislation is often motivated by "horror stories." As workplace privacy abuses continue to make the news, there is always the possibility that a handful of precedent-setting court cases could change the landscape.

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