Rights Of Privacy In The Private Sector Workplace Essay, Research Paper

Introduction

“Companies are intruding more deeply into the lives of employees, and even though corporate intentions may be benign, the risk of backlash is growing.” —Lee Smith (1)

With the rise of advanced technology, there arose the threat of surveillance and privacy invasion in the workplace. An employee, by the very nature of the employment relationship, must be subject to some level of monitoring by the employer. However, this monitoring has its limits. Rights of privacy primarily are related to organizational invasion of a person’s private life and unauthorized release of confidential information about a person in a way that would cause emotional harm or suffering (2). It is the objective of this paper to find out what types of information employers know and what methods are being used to invade the privacy of employees in the workplace.

The meaning of privacy invasion must be addressed to determine the line in which employers cross their boundaries. Historically, employees are accustomed to maintaining a separation from work and their private life. Personal issues such as religious, political and social beliefs have not been subject or available information to employers for analysis. Off-the-job behavior follows the same parameter; employee’s actions away from the workplace are not the business of the organization. In recent years, those assumptions of employees have slowly dissipated. Employers are now gaining information on employee actions, behaviors and beliefs through various means of electronic outlets, information sources, and scientific and psychological testing procedures. Employers are using that information in the hiring-decision process, job performance and promotion evaluations, and in certain cases, reasons for termination.

Constitutional Rights of Privacy for Employees

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”—Amendment IV to U.S. Constitution

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”—Amendment XIV to U.S. Constitution

When the founding fathers of the United States wrote the Constitution, they specifically addressed the most pressing issues of privacy during that period. Those issues included the government’s right to search one’s home as desired and the quartering of U.S. troops in the home. The privacy issues have evolved overtime due to technology and could not have possibly been predicted by the framers of the Constitution. Employees often look to the Fourth and Fourteenth Amendments of the Constitution with hopes of finding legal protection.

So what does the Fourth and Fourteenth Amendments of the Constitution, written in 1791 and 1868 respectively, hold for Americans today in regards to right of privacy from a private organization? Restrictions imposed by the Fourth Amendment are effective against the federal government only, with the Fourteenth Amendment imposing privacy restrictions on state and local government. In short, neither Amendment is effective against private entities (3).

With little help from the U.S. Constitution, employees must rely on the state in which they work to provide the legislation that will eliminate employer invasion of privacy. Many states are considering the acts of private organizations and, thus, passing laws to give back some of the privacy to employees and citizens. The following chart shows some of the examples of recent restrictions put on companies (4).

Employer’s Activities Involving Rights of Privacy in the Pre-Employment Process

Organizations understand that in order to get the best workers, they must choose their employees carefully. Information gathering is the key ingredient to eliminating the bad applicants. The opportunities to gather personal background information on potential employees has increased due to the availability of computer databases containing millions of records of personal data. Today, more employers are being sued for “negligent hiring” for not checking carefully into the background of a potential employee. If an employee’s actions injure another individual on the job, then the employer may be liable. This is a major driving force into the reasons companies are researching so extensively. Also, the cost of retrieving information has decreased significantly and organizations are finding it more feasible to conduct extensive background checks.

The following is a list of the various information an employer can get through public access using an Internet based background check service for a price of roughly $100 (5): Subject’s name and any aliases; Social Security Numbers (SSN); State where SSN was issued; Number of SSN’s used; Date of birth; Address history; Possible relatives; Telephone numbers; Neighbor interviews; Current neighbors names, addresses, and phone numbers; Medical records, Driving records; Vehicle registration; Credit reports; Criminal records; Education verification; Court records; Worker’s Compensation; Employment verification; Military service verification; State licensing records; Bankruptcies; Liens; Judgments; Real Property ownership; Owners of current residence; Corporate involvement (Owner/Officer); Business ownership; UCC filings (Business Loans); Aircraft owned; and Vessels owned

Many employers like to screen employees by issuing psychological tests (see attachment 1 for sample) to determine whether they will be a good fit with the company, is honest or whether they can handle the stress of a particular job. There are no federal laws that prohibit employers from giving employees psychological tests, but some states have enacted laws that limit employers’ rights to administer these tests.

One of more common tests given during pre-employment is the drug test. The rules that apply to drug testing are complex, and there are different rules for different types of employees and employers. In spite of all the variations, it is generally true that an employer may offer a job contingent on passing a drug test provided they indicate that the drug testing will be a part of the screening process, tests all applicants for the same job, and has a state-certified laboratory administer the tests (6). Employers are now using genetic information and techniques to predict whether an employee may be genetically susceptible to various types of illnesses or substance (7). Some employers may seek to use genetic tests to discriminate against workers-even those who have not yet or who may never show signs of disease-because the employers fear the cost consequences. Based on genetic information, employers may try to avoid hiring workers who they believe are likely to take sick leave, resign, or retire early for health reasons (creating extra costs in recruiting and training new staff), file for workers’ compensation, or use health care benefits excessively. Testing must not be done without the informed consent of the employee or applicant for employment.

Employer’s Activities Involving Rights of Privacy of Employees in the Workplace

“Every time I passed through those plant gates to go to work, I left America, and my rights as a free man. I spent nine hours in there, in prison, and then came out into my country again (08).”–Author unknown.

Once an organization actually hires an individual, the employer will want to ensure that employees perform their jobs at an appropriate level. Therefore, the growing trend is to induce more on-the-job monitoring and personal information gathering. Employers are finding additional resources for observing and gathering information on an employee due to technology and availability of information. The following are the most common methods, practices, and resources used by employers on the job and their effects on employee privacy.

Telephone monitoring has been a long-time practice used by employers for reasons of quality control with clients and customers. However, in the same process, employers are monitoring personal calls of employees. Under federal law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call (9). So the issue becomes a matter of integrity on the part of the employer to stop listening to the conversation. If company policy states that employees are not to make personal calls, then all conversations can be legally monitored. If an employee uses a headset phone without a mute switch, then employees can even monitor personal conversations with co-workers when not actually using the phone. Employers can also obtain a record of all phone calls made from a worker’s phone. A device called a pen register can record telephone numbers dialed from phone extensions and also the length of time of each call. While federal law prohibits the use of pen registers in the public sector (10), the private sector does not have to abide by those laws.

Computer monitoring is a direct way employers can gain entrance into an employee’s workspace undetected. Special software can allow an employer to see what is on the screen at any given time, including Internet sites, or see what is stored in the employee’s computer terminal and hard drive. Persons involved with intensive data entry or word processing can even be subject to keystroke monitoring. Employers can even keep track of how much time an employee is away from the computer by monitoring the active and idle times of the terminal. Since employers own the networks and workstations, employees haven’t any defense to this type of monitoring.

Electronic mail and voice mail fall under the same situation as computer monitoring. Because the private company owns the equipment being used, they have full entitlement to whatever monitoring they desire. Many employees may believe that by deleting an e-mail or voice message, they are saved from management being able to access it. That is not the case. Even if they are erased, many organizations have equipment that backs up every piece of information that enters the system.

Surveillance devices are primarily used for security purposes for an organization, but also caught on tape are the employees doing there day-to-day activities. Each and every move an employee makes can be recorded and monitored as well as every single word spoken if the equipment contains microphones. In most states, private companies even have the right to set up surveillance in locker rooms and bathrooms.

Electronic sensor badges are microcomputers in clip-on identification cards used by many organizations for security and identification purposes. Unbeknown to most people is the fact that the badges emit infrared signals, which allows employers to monitor the exact location of the employee throughout the building, recording also where they have been.

Employer’s Lifestyle Discrimination Activities in the Workplace

Many private employers are using the power of the paycheck to tell their employees what they can and cannot do in the privacy of their own homes. The primary targets of employers are the employees that partake in activities that are liable to lead to bad health, such as smokers, overeaters, people with hypertension or high serum cholesterol levels, drinkers, and sports enthusiasts. With the rising costs of health care coverage for employees, employers are looking for ways to eliminate future costs. Under the pressure of economic considerations, employers may very well try to regulate every health-related aspect of their employees’ lives, including diet, hobbies, sleep habits and even childbearing.

Drug testing in the workplace is a standard practice among many organizations designed to detect drug use among employees as well as prevent them from starting. The majority of employees in the workplace are not drug users, but are subjected to the embarrassment of urinating in a container under the supervision of another person.

Analysis

The moment an individual decides he or she wants to gain employment through a private sector organization, that individual is automatically going to give up their right to privacy. Before an employee is even hired, the employer is able to learn virtually every significant aspect to that person’s life, not only from the past but also any present situations. There is very little that is not a matter of public record and employers are willing and able to retrieve that information. The decisions to hire an individual are not solely being decided based on knowledge and skill; rather employers are measuring what kind of future liabilities are employees going to bring to the organization in terms of cost.

The moment a newly hired employee sets foot into the new work environment, the employer will have access to virtually every single move, action, and word spoken by the individual. Not only are all work-related actions being monitored, but employees are also susceptible to having their personal affairs invaded. The only protection an employee has is to keep all personal affairs outside the office. That is a difficult task to ask of employees considering many Americans spend more waking hours of the day in the working environment than at home. Ironically, losing the right to privacy in the workplace pays the costs of having the privacy in a home.

Conclusion

The right to privacy is a core value to being an American citizen. Unfortunately, the U.S. Court systems have not addressed the issues of workplace privacy in the private sector and taken measures to keep the American’s freedom on the job. Without protection from the government, employees must live with the reality of working and living under the rules of their employers. Employers have the legal right to monitor and retrieve personal information with regards to unlawful distribution of that information. The employing organizations are, in fact, the proprietors of the equipment, buildings, and land in which the employee is voluntarily offering their job skills. The employing organization is also providing an adequate return for employee’s skills in the form of a paycheck and benefits. If American citizens want the American life away from work, then they are inevitably going to have to make sacrifices on the job in order to gain it.

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1. Lee Smith, “What the Boss Knows About You.” Fortune, August 9, 1993, p. 89.

2. John W. Newstom and Keith Davis. Organizational Behavior—Human Behavior at Work.

McGraw Hill Companies: 1997.

3. The Publishing Law Center. Law Office of Lloyd L. Rich.1995

4. Workplace Rights. American Civil Liberties Union. 2001

5. Absolute Backgrounds.com Business Page. 2001

6. Law You Can Use. My Council.Com. 2000-2001

7. American Medical Association. Council on Ethical and Judicial Affairs. “Use of Genetic

Testing by Employers”. JAMA Journal of the American Medical Association 266(13): 1827-1830, 2 October 1991.

8. Workplace Rights. American Civil Liberties Union.

2001

9. Electronic Communications Privacy Act, 18 USC 2510.

10. Pen Registers and Trap and Trace Devices, 18 USC 3121, Chapter 206.