Employees Rights In The Workplace Essay, Research Paper

With the rise of technology there arose a fear of surveillance. However,

George Orwell’s 1984 passed us by without noticeable big brother

control, and the national concern over espionage diminished with the

demise of the U.S.S.R.

These past threats were concerns over the use of technology by

governments that had sufficient resources to use the technology for

sinister purposes. The new threat is not technology in the hands of

government, it is technology alone. What once required massive manpower,

now requires merely a personal computer. Technology has made the power

to monitor others widely available, whether to governments, private

enterprise or individuals. This article discusses some of the laws

applicable to the monitoring of employees in the private 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 limits. Courts have held that it is a tortuous invasion

of privacy for an employer to monitor employee telephone conversions.

Similarly, mail carried through the U.S. postal service is granted a

high level of protection.

However, much employee communication now takes place over private and

public networks via e-mail, or voice mail. These forms of communication

are very different from telephone calls and letters. For example, after

transmission and receipt, these communications are stored for an

indefinite period of time on equipment under the exclusive control of

the employer. Additionally, these communications can be examined without

the knowledge of the communicators. As is often the case, the law has

difficulty keeping pace with the issues raised by fast changing

technology.

Electronic Communications Privacy Act -

In the federal sphere, only the Electronic Communications Privacy Act of

1986 (ECPA) directly prohibits the interception of e-mail transmissions.

The ECPA prohibits the interception by (1) unauthorized individuals or

(2) individuals working for a government entity, acting without a proper

warrant. The ECPA is mostly concerned with the unauthorized access by

employees or corporate competitors trying to find out valuable

information. However, while there is no specific prohibition in the ECPA

for an employer to monitor the e-mail of employees, the ECPA does not

specifically exempt employers.

The ECPA has several exceptions to the application of the prohibition of

interception of electronic communications. The three most relevant to

the workplace are (1) where one party consents, (2) where the provider

of the communication service can monitor communications, and (3) where

the monitoring is done in the ordinary course of business.

The first exception, consent, can be implied or actual. Several courts

have placed a fairly high standard for establishing implied consent. For

example one court held that “knowledge of the capability of monitoring

alone cannot be considered implied consent.” Accordingly, for an

employer to ensure the presence of actual consent, it should prepare,

with advice of counsel, a carefully worded e-mail Policy Statement which

explains the scope of employer monitoring. This Policy Statement should

be signed by the employees. One example of how this Policy Statement

needs to be carefully written is that if it states that personal

communications will be monitored only to determine whether there is

business content in the communications, then this would probably not

amount to consent to review the full text of personal communications.

Additionally, notice that communications might be monitored may have a

significantly different legal affect than a notice stating that

communications will be monitored.

The second exemption is that the ECPA exempts from liability the person

or entity providing the communication service. Where this service is

provided by the employer, the ECPA has been interpreted as permitting

the employers broad discretion to read and disclose the contents of e-

mail communications, without the employee’s consent. However, employers

should not rely on this exception, because it might not apply in all

cases, such as to incoming (as opposed to internal e-mail) if the e-mail

service is provided by a common carrier (e.g., America Online or MCI

mail, which are not provided by the employer).

Under the third exception, courts will analyze whether the content of

the interception was business or personal and allow the interception of

only business-content communications.

State laws -

State tort laws are often viewed as the primary sources of protection

for privacy of electronic communications. The most common tort that

would apply is the tort of invasion of privacy. This tort occurs where

“one who intentionally intrudes, physically or otherwise, upon the

solitude or seclusion of another or his private affairs or concerns, is

subject to liability to the other for invasion of his privacy, if the

intrusion would be highly offensive to a reasonable person.”

This tort does not require that personal information be actually

acquired, disclosed or used. However, the intrusion must be intentional

and highly offensive to a reasonable person. Additionally, there must be

a reasonable expectation of privacy by the employee.

Employees often believe that their communications are private because

they have a password which they can select and change independently or

because they are communicating through outside common carriers. Cases

have often turned upon whether this belief was reasonable given the fact

that the employer had the ability all along to access the files, though

the employees were not aware of this. In determining the outcome, courts

will weigh the reasonableness of the employee’s expectation of privacy

against the business interest of the employer in monitoring the

communication. However, it is important to emphasize that in the final

analysis courts have traditionally held that legitimate business

interests permit employers to intercept communications.

Additionally, state constitutions might provide some protection. A

number of state constitutions provide a specific right of privacy. But,

only California has specifically determined that its constitution

provides a cause of action against nongovernmental entities. However,

even in California, the courts will give significant weight to the

business interests of the employer.

Conclusion -

As discussed, much of the law of privacy in the workplace turns on the

reasonable expectation of privacy. When evaluating different situations,

it is important to keep in mind that the law in this area is a moving

target, as recently expressed by Professor David Post of Georgetown

University Law Center (in The American Lawyer, October 1995) “until we

have all spent more time in this new electronic environment, who can say

what our expectations really are –let alone whether they are

reasonable?”

In the workplace, federal and state laws provide some protection to

employee communications. However, this protection is quite limited.

Until the law develops further, employers should prepare carefully

drafted Policy Statements that explain how the employer intends to

monitor employee communications. And employees, even in the absence of

such Policy Statements, would be well advised to consider their

communications available and accessible to the employer. Also, where

privacy is an issue, employees and employers can create a more

productive work environment if they work together to jointly develop a

Policy Statement that balances the legitimate interests of both the

employer and the employees.

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