In the business environment, there are times that issues arise that may be of a legal nature. Issues such as corporate scandals, consumer lawsuits or issues related to employee misconduct and disciplinary actions can lead to legal activity. This means that evidence and information corroborating or disputing said issues must be materialized, and the most common way to obtain this type of information is through technological resources such as those used to monitor workplace activity among employees.
Consequently, it is without question that technology can have a significant impact on legal issues within the business environment. For example, the issue of employers monitoring employee Internet usage in the workplace is a common occurrence in today’s business environments. There has been much debate on whether or not this activity by employers is legal on the one hand, and whether or not it is ethical on the other hand. However, it is a fact that legalities and ethical issues may not be one in the same.
Is Employee Monitoring Legal and Ethical?
Employee privacy is an issue that has become popular in this age of technology where many employers are monitoring their employees’ usage of company resources such as email, telephones and the Internet. New technologies are on the market that allows employers easy access, through electronic monitoring, to tap into what their employees are doing at work and how they are spending company time and using company resources. Many times employees may not even know these technologies exist and are being used in their workplace to keep tabs on what they are doing.
According to Mishra & Crampton (1998), employee monitoring systems include monitoring various facets of an employee’s presence and activities in the workplace such as computer monitoring, video surveillance, and phone tapping. Additionally, each of these facets include various sub-categories; however, computer monitoring as it relates to Internet usage is likely the most common facet of employer monitoring.
In addition, there are many who believe this to be an unacceptable activity and an invasion of employee privacy, and there are some who feel that an employer has a right to keep an eye on how company resources are used and that it is not a privacy issue and is completely acceptable.
Employee Monitoring as an Acceptable Activity
Many people agree that employers have a right and a responsibility to protect their investment in their businesses, even when this includes making sure their employees are doing what they are paid to do in the workplace. This includes assisting in this effort by the use of employee monitoring technology.
According to Schulman (2010), a Nielsen Media Research study reports that some employees at corporations like IBM and AT&T were monitored and found to have visited porn sites while at work. The study showed there had been thousands of visits to Penthouse.com in a month. This is one of the most blatant examples of employees abusing company time to surf the Internet, and not only that, but to surf and to visit an inappropriate site when they were supposed to have been working. It is no wonder that employers with employees such as these are justified in checking up on what is going on in their corporations.
Productivity is a significant factor in a company’s success. Employees who are prone to goofing off on the job cause lost productivity and time which equates to lost profits. Employers pay employees to do their jobs, not to come into work and misuse company resources for pleasure or personal gain.
Employers’ monitoring of employees’ electronic communications usage is also important to flag inappropriate emails that may be offensive to some employees, causing them to file lawsuits against the company. For example, someone may send a sexually explicit email to several coworkers and one or more of those people may be offended and may file a sexual harassment suit against the company for allowing such behavior. With employee monitoring, this type of situation can be averted by the use of software monitoring programs that catch key words and flags management of inappropriate electronic communications. Other inappropriate emails could be security breaches and may cause an employer to end up in court as well (Schulman, 2010).
Based on the above, employer monitoring of its staff in the workplace is definitely an acceptable activity, because it is a way that employers can identify unproductive workers and have recourse to begin disciplinary actions against those who are non-compliant with company policy and guidelines. Additionally, employers use monitoring in the workplace to catch inappropriate conduct by employees that could lead to the company being sued.
Employee Monitoring as an Unacceptable Activity
In contrast to the case for employers and workplace monitoring as an acceptable activity, many have argued that employee monitoring is unacceptable and a violation of privacy rights. Schulman (2010) uses the example of an employee, who drops a personal letter to her boyfriend in the company outgoing mail basket, should feel secure that no one is going to open it and read it, just because she used a company pen and paper to write the letter. This is compared to employers monitoring email communications. The concept here is that email and regular mail should be treated equally, as it relates to privacy in the workplace. This is what many believe who oppose employee monitoring in the workplace.
Additionally, there are many companies who understand that employees are at work most of the day, every day and they may need to take care of some personal matters while at work. These companies are less likely to monitor employees in the workplace and give employees the benefit of the doubt, as it relates to trusting the employees not to over-do spending time on personal matters at work.
Legal Issues Involved in Employee Monitoring
As noted by Schulman (2010), there are those who feel that it should be illegal for employers to monitor the actions of their employee’s while on the job. However, employees usually have little recourse against an employer who disciplines them for inappropriate activities that the employer found out about through monitoring.
As it relates to what is legal in this regard, Federal law prohibits employers to assume the authority to intercept electronic communications of employees. This includes surfing the Internet and employee email messaging, but the employers who provide email and Internet access are exempt from this law. This federal law is governed under the 1986 Electronic Communications Privacy Act.
The law usually sides with the employer in court cases brought on by employees claiming their privacy was violated by an employer who monitored them. Courts look at these cases as a matter of employees should use their own equipment to engage in personal activities, and that they should do it on their own time (Schulman, 2010). It is, however, required that employers disclose to employees that there may possibly be monitoring of electronic communications or other activities in the workplace, and to misuse company resources at their own risks.
Ethical Considerations in Employee Monitoring
What is legal is not necessarily ethical. This is evident in the case of employee monitoring, according to some. There are opposing views about whether or not employee monitoring in the workplace is ethical. It has already been established that employer monitoring is legal, but classifying it as ethical is something different.
On a moral note, tapping into someone’s private conversation, email transmission or viewing their Internet usage, is seen as wrong by many. It is an unspoken expectation that just because an employee works for a company does not mean that employee has to feel like a prisoner and give up all rights to any privacy in the workplace. Privacy becomes a moral issue when it verges on disrespecting the employees (Schulman, 2010).
Given the fact that full-time employees are at work at least 8 hours out of the day, there may be times when they may need to use company resources for personal activities, because they need to check on loved ones or check their financial information while business hours are still open. In these instances, employees feel that too much monitoring definitely invades their privacy and this is a concern, because they feel like they should be granted some level of freedom in this area (Mujtaba, n.d.).
As it relates to ethical issues in the workplace and technology, cyberloafing is a common activity among many workers in today’s business world. Cyberloafing refers to employees using company time to surf the Internet, which is an abuse of company resources.
In contrast, it is unethical for employees to abuse an employer’s resources for personal gain or entertainment, while they are supposed to be working and giving the employer a good day’s work for a good day’s pay. Many company codes of conduct stipulate a code of ethics that asks all employees to abide by good values and morals, to include being good stewards of company resources.
Legal Impact of Technology on Employee Monitoring
Many companies are becoming more aware of employee monitoring techniques that they can employ to keep an eye on their employees’ workplace behavior and non-work related activities. One way they are doing this is investing in new technologies that include employee monitoring software packages. One such software package is called LittleBrother® and it gives employers the ability to monitor employee Internet usage and flags visited websites and rates them as productive, unproductive or neutral. The program also gives employees a browsing rating that employers can see, and this gives employers information on what sites are popular for browsing on the job and also what employees are doing most of the browsing (Schulman, 2010).
Legal issues that may arise with employee Internet and email usage monitoring can include lawsuit claims on the basis of such a case as e-harassment. In light of this potential lawsuit risk, employers are still using employee monitoring in an effort to protect their resources from neglect and abuse and this is done, on a large scale, with technology and this equates to employee monitoring software sales in excess of $140 million a year (Towns, 2002).
The largest impact on technology, as it relates to legal employee monitoring is related to invasion of privacy claims on the part of employees who were monitored and were subjected to some type of disciplinary action. In court, an “employee must show that he or she had a reasonable expectation of privacy in the communication at issue” to have a chance at winning a legal claim against an employer in this regard (Towns, 2002). There have been several lawsuits against employers by employees who claim their legal rights to privacy were violated. One example of this is the case of a California policeman who used his work pager, frequently, for personal messaging including sexting messages to his wife. His employer retrieved his messages from a transcript obtained from the company’s wireless provider. The police officer sued his employer and won the case on the basis that he had a “reasonable expectation of privacy” when sending the messages, but by retrieving his text transcript, the employer was deemed at fault for invading his privacy. Additionally, the Supreme Court is reviewing this case to possibly use it as a guideline for future cases (Fahmy, 2009). Clearly, this speaks to the legal impact of technology on employee monitoring in regard to how it affects both the employer and the employee.
Based on the above findings, it is accepted that the legal impact of technology as it relates to whether or not it is legal for employers to monitor employee activity in the workplace is acceptable. In lieu of the fact that employees spend a significant amount of time at work, they will need to use company time and resources for personal matters sometimes. This is acceptable, as long as it is within reason and not a privilege that is abused. However, to protect its assets, profits and productivity, the fact that it is legal for an employer to monitor employees in the workplace is also acceptable. Additionally, this acceptability includes employers doing their due diligence to ensure employees’ privacy and rights are protected as much as possible by providing clear policies and procedures regarding employee monitoring.
If employees know before-hand that they may be monitored, then they can make a conscious decision to use employer resources for personal reasons in moderation, and not be tempted to abuse the freedom to do so. Also, knowing before-hand allows employees the knowledge of what is expected of them, and therefore, protects an employer from potential lawsuits brought on by employee claims of invasion of privacy. In addition, employees are more likely to adhere to high ethical standards if they are included in company communications on the subject. This includes company’s incorporating a Business Code of Ethics into their company policy to facilitate good behavior practices among its employees.
In conclusion, Mujtaba (n.d.) points out that employees who are abiding by ethical standards and corporate policies have no reason to be concerned about monitoring, and at the same time, employers should be sure to conduct monitoring in a fair and ethical manner. When all parties know what is expected, then conflicts are avoided and the work environment remains drama-free and pleasant.
Fahmy, D. (2009, December 17). Can You Be Fired for Sending Personal E-Mails at Work? Retrieved from ABC News: http://abcnews.go.com/Business/GadgetGuide/supreme-court-employee-rights-privacy-workplace-emails/story?id=9345057
Mishra, J. M., & Crampton, S. M. (1998, Summer). Employee monitoring: Privacy in the workplace? Advanced Management Journal, 63(3), 4, 11.
Mujtaba, B. G. (n.d.). Ethical Implications of Employee Monitoring:. Joural of Applied Management and Entrepreneurship.
Schulman, M. (2010). LittleBrother is watching you . Retrieved from Santa Clara University: http://www.scu.edu/ethics/publications/iie/v9n2/brother.html
Towns, D. M. (2002). Legal Issues Involved in Monitoring Employees’ Internet and E-mail Usage. CW Bulletin.