Employee Monitoring
Introduction
In the workplace there is usually a conflict between the employer and employees regarding monitoring. This emerges because the employers want to make sure that the workers are doing an excellent job, but the workers on the other hand, want their privacy. The use of new technologies has enabled the employers to observe numerous aspects of the job of employees particularly on computer use, computer terminals, telephones, through voice and electronic mail. This form of monitoring is practically unregulated; the reason as to why the employers use such technologies by employers can be associated to four main reasons: productivity, liability, protection of intellectual property and trade secrets, and discoverability.
The increased monitoring has led to the numerous lawsuits bought against companies by their employees for the invasion of privacy. According to recent surveys, the majority of companies carry out some form of monitoring of employees. In a survey conducted in 2007, it established that approximately 67% of employers observe the web site visits by employees so as to limit inappropriate browsing. Roughly 65% of the employers also apply soft wares in order to restrict websites that are considered inappropriate for employees. These statistics reveal an estimated increase of about 27% as compared to the monitoring carried out in 2001. The employers have stated that their main concern is the visitation of external blogs, sexual content in adult sites, auctions and shopping, social networking, sports, entertainment and games. (Wallace, 2004)
This research paper seeks to address the employee right for privacy and companies’ right for monitoring employees. The paper also discusses the positive and negative effect for monitoring employees, the types of employer monitoring such as email monitoring, voicemails and phone calls, drug testing, medical information, camera monitoring and finally the ethical aspects of the matter.
Employee right for privacy
State and federal laws allow the protection of employee privacy and have provisions against an employer’s invasion of privacy. The right to privacy is recognized in most states, for employees in agencies of the government they are more advantaged as compare to the employees in the private sector. According to the constitution of the United States, they are protected against local, state or federal governments from carrying out unwarranted seizures and searches. Such government workers have a legal right to privacy until or unless the employer presents a genuine and reasonable reason for carrying out an inquiry or search.
Private-sector employees are more disadvantaged as compared to the public sector counterparts in privacy matters. The right to privacy is acknowledged by some states; nevertheless, they cannot assure the employees the protection against computer transmissions and input, Email monitoring, and against searches and seizures of employee belongings. However, the rights which might exist, in common law regarding privacy can be limited by law. For instance, the law permits the company policies to either limit or increase expectations of privacy. With time, courts have been able top formulate standard laws which facilitate the, employee to take legal action against employers for privacy invasion under the following areas:
-Intrusion; this protects the employee against and unreasonable or unwanted intrusion of personal space. This gives employees the right not to be bothered or watched. (Block, 2001)-Private affairs; this provision protects the employee from unreasonable or unwanted publicity concerning the private affairs or life of employees or any form of disclosure of medical or the personal information. (Greenwald, 2005)-Defame; this provision protects the employee from the release of inaccurate or misleading information or publicity by an employer which makes an employee to be viewed in a false light by the public or any form of defamation.-Appropriation of name; this provision protects the wrong use of the name or likeness of an employee without permission. (Archer, 2000)
Companies’ right for monitoring employees
The employers have a lot of freedom as to how much they can monitor employees; nevertheless, there are numerous laws which they are, required to comply. Such laws include the 1998 data protection act, the 1998 human rights act, the 2000 regulation of investigatory powers, and the 2000 telecommunications act. Employers should be reasonable in monitoring communications by employees and should seek to ensure that privacy rights of employees are not violated.
Under the 1998 data protection act, the employer is allowed to conduct Internet, telephone, CCTV and email monitoring if this involves information processing using automated methods for an identified living person. The employer should comply with the 8 principles under this act and he should be viewed as a data controller. This act also requires the employer to inform employees that they are being monitored, and the company must adhere to the regulations regarding sensitive and personal data.
The 2005 employment practice code also regulates the use of telephone, audio and video monitoring. According to this code, monitoring of employees is allowable in instances whereby there are security or safety risks which cannot be taken care of in a manner that is less intrusive. The code also proposes that the interception of communications or use of CCTV is only justified if:
$1- The observation is associated to behavior of workers and not to contract performance.
$1- It is done to scrutinize a suspected malpractice or criminal activity.
$1- Alerting the employees will prejudice the purpose of monitoring.
$1- There is adherence to standards that are concerned with covert monitoring.
What is crucial in employee monitoring is that employers should formulate a policy to inform workers that they are monitored. The employer should also state the reasons for monitoring which should be, legitimate and finally the employer should be reasonable in monitoring.
The positive and negative effect for monitoring employees.
There are both pros and cons of monitoring employees in the place of work. Advocates for employee monitoring propose that it can be used as a tool for increasing productivity of workers and reduce the wastage of bandwidth and company time. Many employers decide to monitor the employees so as to cut on the personal computer use because personal emails and surfing reduces productivity and consumes time. On average, an employee in the US uses roughly 6 hours each week on the Internet for private purposes while still at work. At least 62% of such workers visit sites with adult sexual content, with three quarters of porn traffic being during hours of work. For workers earning less than $ 35, 000, 9% spend time on the net looking for a new job. According to recent statistics the wastage of Internet time results in approximately $5.3 billion loss of productivity. Therefore, monitoring will help in spotting of workers who spend a lot of their time surfing for personal purposes. The other positive effect of monitoring is that it facilitates the protection of intellectual property. Monitoring will enable an employer to detect and deter employees from leaking the company secrets.
Monitoring of employees is also used as a tool for evaluating and improving performance of the employee, document and promote positive behavior, and can promote the faster completion of tasks by employees. The use of monitoring is an unbiased means that can be used in the objective evaluation of performance without the interruption that arises from the feelings of a manager in reviewing an employee. The use of information that is electronically generated also gives accurate and uniform feedback with regards to past performance.
The negative effects of monitoring employees are that it can lead to a reduction in job satisfaction and low morale by the employees. This results in reduced productivity as the employees will be in continuous fear of eavesdropping, and this can potentially lead to “high employee” turnover. Monitoring employees is also costly as the company will be required to purchase sophisticated equipments such as CCTV cameras and soft wares, and this adds on to the expenses of a business. (Murray, 2005)
Monitoring is also considered intrusive and can result in the opportunity for abuse, a company for instance can use personal data against an employee. For instance, companies can use such information to retaliate or discriminate employees by utilizing it in harassing or identifying union organizers and whistle blowers in a firm.
The other negative effects of monitoring employees have to do with the possibility of lawsuits that employees can bring against the company on the basis of intrusion. As a result of the increase in employee monitoring the re has been 3000% rise in claims that are privacy related. (Kirstein, 2003)
Types of Employer Monitoring
Voice mail and Email privacy
The use of email or voice mails is one of the widely used methods of monitoring, the use of email provides employers with the chance to ask for priority category or receipt request to view when employees use or receive messages. New technologies enable the employer to monitor voice and Emails, even when such mails have been erased from the voice mail system or terminal. Such messages are usually backed up permanently on magnetic tapes together with other information in the computer. Even though emails can be likened to postal mails, there are no federal laws in existence that ban the employer from accessing any computer file or email. Employers also apply encryption in email privacy protection; this involves the scrambling of mails at the terminal of the sender and thereafter unscrambling them at the terminal of the receiver. (Oliver, 2002)
Phone calls
Employers are permitted to monitor phone calls, in confirming that such calls are only used for business purposes, and it is also allowed for the purpose of training. Other employers monitor calls for purposes of controlling quality. The employers however, should not monitor calls of a personal nature. In addition, employers can use a pen register to record the dialed numbers and enables the employer to see the length of calls and the numbers dialed. It is mainly used for evaluation of the duration spent on clients.
Drug testing
The use of drug testing is a crucial issue for safety professionals and employers in the place of work; it involves the technical examination of biological spectrum such as saliva, hair, urine, sweat or blood in establishing the absence or presence of a metabolite or drug. The role of the drug testing is to reduce the effect of drug abuse in the place of work as a result of violence, crime, theft, decreased productivity turnover absenteeism, attitude problems and tardiness. It is estimated that the use of drugs in the place of work costs approximately $75 and $100 billion dollars yearly in health care, compensation costs, accidents and lost time. Roughly 65% of all accidents are associated with alcohol or drugs and users of drugs use more health care benefits.
Medical information
Employers normally get the medical information concerning the employees using medical records disclosure requirement. The employer is however, required to keep such information confidential and may enquire for this information as part of background check before one is employed.
Video monitoring
Camera surveillance is utilized in observing the behaviors of employees. Such videos can be installed in noticeable and open places, whereas others are secretly installed. Such cameras provide extremely helpful information that can enable employers to monitor horseplay, safety hazards, or employee pilferage.
Ethical Analysis of employee monitoring
In analyzing employee monitoring ethically, there is a need for employers to come up with ethical guidelines on how to monitor employees. The employers have a right to monitor employees as it can lead to reduction in the loss of proprietary and confidential information, and from the fact that it can affect customer relations and productivity of an organization. Employees, on the other hand, have the right to access voice mail, emails, files or desks. Therefore, there is a need to develop a policy that will be beneficial to both employees and employers.
Employers have the duty to inform the employees that they are being monitored and occasionally remind management and employees of this policy before it is implemented. Moreover, the company should have a policy that is written and it should be distributed to workers to see and read it exhaustively. The workers should be informed that the effectiveness of passwords is not guaranteed in preserving privacy, in addition, there should be a log to inform the employees that they are under surveillance once they use a computer. In as much as employers are allowed to spy on employees, this does not imply free reign. With regards to oral conversations the employers should eavesdrop only there is consent by one participant, implied or express to listen to the conversation, or restrict from using any mechanical or electronic device. (Weckert, 2004)
Conclusion
The issue of employee monitoring has resulted into both legal and practical problems. On one hand employees allege that it gives the employer a chance to abuse workers, has an effect on the safety and health of workers and has an influence on the privacy of employees. Workers who are under continuous observation suffer from nerve-racking and unending pressures which can harm the psychological and physical health of a worker. Employers and companies, on the other hand, propose that they have the right to direct employee work rates and environment. They argue that quantifiable and object information is independent of subjective valuations and office politics and can result in just assessment. The employers and employees both make convincing points but the critical issue is balancing their concerns.
Currently, the employer is advantaged as laws allow him to monitor the workers. Nevertheless the objectives of employers cannot be achieved without considering the effect of monitoring on workers. The employer should consider the privacy rights of employees and how monitoring might impact on the health and welfare of employees. The employers for instance can use teams or groups in monitoring as opposed to monitoring the individual alone as this can promote team spirit and decrease individual stress. As technology advances there is the need to have well established guidelines for both employers and employees regarding monitoring.
Reference:
Archer, T. & Morris, G (2000): Collective labor law. Hart publishing, Oxford.
Block, W. (2001): Cyber slacking, business ethics and management economics. Pg. 225-320. Journal of Business Ethics.
Greenwald, J. (2005): Workplace blogging brings Liability risks for employers. Pg. 2-3. Business Insurance.
Kirstein, M. & Freeman, R. E. (2003): Some problems with employee monitoring. Pg. 353-361. Journal of business ethics. Retrieved on April 6, 2010 from http://www.springerlink.com/content/h3wv53080480k475/#ContactOfAuthor1
Murray, A & Klang, M. (2005): Human rights in a digital age. Glasshouse press, London.
Oliver, H. (2002): Email and Internet monitoring in the workplace; information, privacy and contracting out. Pg. 339. ILJ
Wallace, P. (2004): The Internet on the Workplace; how new technology is transforming work. CambridgeUniversity Press, Port Melbourne, Vic.
Weckert, J. & Miller, S. (2000): Privacy, the workplace and the Internet. Journal of business ethics.
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