Workplace Surveillance

Parks Frazier

Types of Monitoring

•Computer Monitoring

•Network Surveillance

•Call Monitoring

•Video Monitoring

•GPS Surveillance

•Social Media Monitoring

Why is it necessary?

•legal liability reasons

•security concerns

•productivity measurement and performance reviews

•legal compliance

Legal Liability

•Chevron Corporation sexual harassment charge

Performance Review•cyberloafing- slang term used to

describe employees who surf the net, write e-mail or other Internet-elated activities at work

•employee monitoring to prevent this

Cost of cyberloafing•Proven that cyberloafing can cost

large companies up to 1 billion dollars per year

•How can employers stop excessive cyberloafing without causing employees to feel resentment??

Stopping cyberloafing

•develop solid policy

•all monitoring should be kept work related

•make guidelines regarding personal use of Internet reasonable

•be aware of state laws for privacy in the workplace

•get consent!

Computer Monitoring

•main reason is to prevent cyberloafing

•four types:

•screen monitoring

•data monitoring

•keystroke monitoring

•idle time monitoring

Screen Monitoring•Employer reviews video or images

of screen activity

•Examine EXACTLY what employees are doing on their computers

•most intrusive

Data Monitoring

•Consists of keeping track of the content of files stored on employees’ local hard drives.

Keystroke Monitoring

•Mostly used in word-processing or data entry jobs

•Software keeps up with number of keystrokes per unit of time

•Reports to employer if necessary

•Has been linked to health problems including stress disabilities and carpal tunnel

Idle Time Monitoring

•Keeps track of amount of time employee is either away from computer or on computer not doing anything

•Least intrusive

Network Surveillance

• monitoring of data and traffic on the Internet

• Computers communicate through use of “packets”

• Network Surveillance is basically inspection of these packets

• Electronic Communications Privacy Act supports that employers who own their computer system have the right to monitor

Smyth vs. Pillsbury

•Smith was told his e-mails couldn’t be intercepted and used against him

•He then made threatening comments over this e-mail and was terminated for it

•He lost because of Pennsylvania’s denail of a cause of action for the termination of an at will employee

Falmouth Firefighters Union

vs. Falmouth•Many sexual and intimate e-mails

were recovered from work emails of Firefighter

•Charged with sexual harassment

•Lost because he couldn’t prove reason for expectation of privacy

Stengart vs. LovingCare Agency•Employee emailed attorney and

employer used these emails against him

•Court ruled that attorney-client privilege applied to emails

•Company policy stated no expectation of privacy

•Main factor: sent from personal email

Holmes vs. Petrovich

Developmental Co.•Identical situation as Stengart vs

LovingCare Agency

•Only difference: emails were sent from company email

•Court ruled in favor of employer

City of Ontario vs. Quon

•Supreme Court upheld search of police officer’s personal messages

•Not violation of constitutional rights because search was work-related

•However, found sexually explicit messages

Video Monitoring

•Reasons for video monitoring:

•deter theft

•maintain security

•monitor employee performance

Video Monitoring cont.•There are no federal laws in place

to protect against Video Monitoring

•Very few employees have won privacy cases involving video surveillance

Call Monitoring

•Types:

•Employers monitoring phone calls

•Employers obtaining phone records

•perfectly legal

Monitoring Phone Calls

•Electronic Communications Privacy Act of 1986 states that employers are not allowed to monitor employees phone calls without two exceptions:

•Consent exception

•Business extension exception

Consent Exception

•Employer needs one party to give consent for monitoring

•CAREFUL!! Could be hidden in contract agreements

Business Extension Exception

• No consent required

• Requirements must be met:

• Phone equipment must have been supplied by employer

• Equipment must be used in ordinary course of business hours

• Can NOT monitor personal phone calls

• Can be very difficult to enforce

Employer steps to call monitoring

• Identify means for which he or she will be monitoring

• Do not intercept personal calls

• Provide unmonitored phone line for personal calls

• Make a clear and precise company policy

• Only allow authorized personnel to monitor phone calls

• Written consent!!!

Social Media Monitoring

•Recent issue

•No federal laws in place

•Companies looking for unauthorized posting of company content

•Mostly left to company policies

•Have been court rulings AGAINST employers who fired employee for complaining over social media

GPS surveillance•Employers using GPS to track

employees

•Some courts have expanded from employer owned cars to employee owned cars as well

•Court rulings have been in favor of employers

Ethical Issues

•What is the line when it comes to Employee Monitoring?

•Ethics of Employer monitoring

•Ethics of Employee behavior

•Technology is constantly changing

•How intrusion much is too much?

References

• http://www.huizenga.noba.edu/Jame/articles/employee-monitoring.cfm

http://heinonline.org/HOL/LandingPage?handle=hein.journals/geoir32&div=23&id=&page=

http://www.sciencedirect.com/science/article/pii/000368709290006H

http://faculty.bus.olemiss.edu/breithel/final%20backup%20of%20bus620%20summer%202000%20from%20mba%20server/frankie_gulledge/

employee_workplace_monitoring/employee_monitoring_privacy_in_the_workplace.htm

www.privacyrights.org/workplace-privacy-and-employee-monitoring

www.rcfp.org/rcfp/orders/docs/RECORDING.pdf

www.techrepublic.com/article/issues-to-consider-when-implementing-an-employee-monitoring-program/

www.counsel.cua.edu/fedlaw/ecpa.cfm

www.waxingunlyrical.com/2014/02/19/3-things-dont-know-social-media-monitoring

www.webopedia.com

www.nolo.com

www.wikipedia.org

•Questions?