Copyright
© 1993-2003. Utility
Consumers' Action Network
/ Privacy Rights Clearinghouse
Mar. 1993 Revised September
2002
This
copyrighted document
may be copied and distributed
for nonprofit, educational
purposes only. The text
of this document may
not be altered without
express authorization
of the Privacy Rights
Clearinghouse. This
fact sheet should be
used as an information
source and not as legal
advice. PRC fact sheets
contain information
about federal laws as
well as some California-
specific information.
Laws in other states
may vary. Overall, our
fact sheets are applicable
to consumers nationwide.
This publication was
originally developed
under the auspices of
the University of San
Diego.
Employee
Monitoring: Is There
Privacy in the Workplace?
Employers want to
be sure their employees
are doing a good job,
but employees don't
want their every sneeze
or trip to the water
cooler logged. That's
the essential conflict
of workplace monitoring.
New
technologies make
it possible for employers
to monitor many aspects
of their employees'
jobs, especially on
telephones, computer
terminals, through
electronic and voice
mail, and when employees
are using the Internet.
Such monitoring is
virtually unregulated.
Therefore, unless
company policy specifically
states otherwise (and
even this is not assured),
your employer may
listen, watch and
read most of your
workplace communications.
Telephone
Monitoring
Can
my employer listen
to my phone calls
at work?
In
most instances, yes.
For example, employers
may monitor calls
with clients or customers
for reasons of quality
control. However,
when the parties to
the call are all in
California, state
law requires that
they be informed that
the conversation is
recorded or monitored
by either putting
a beep tone on the
line or playing a
recorded message.
(California Public
Utilities Commission
General Order 107-B,
www.cpuc.ca.gov/Published/Graphics/567.pdf)
Not every business
is aware of this requirement,
so your calls might
still be monitored
without a warning.
Federal law, which
regulates phone calls
with persons outside
the state, does allow
unannounced monitoring
for business-related
calls. (See Electronic
Communications Privacy
Act, 18 USC 2510,
et. seq., www.law.cornell.edu/uscode
.)
An
important exception
is made for personal
calls. Under federal
case law, when an
employer realizes
the call is personal,
he or she must immediately
stop monitoring the
call. (Watkins v.
L.M. Berry & Co.,
704 F.2d 577, 583
(11th Cir.
1983)) However, when
employees are told
not to make personal
calls from specified
business phones, the
employee then takes
the risk that calls
on those phones may
be monitored.
Privacy
Tip: The best way
to ensure the privacy
of your personal calls
made at work is to
use your own mobile
phone, a pay phone,
or a separate phone
designated by your
employer for personal
calls.
If
I wear a headset,
are my conversations
with co-workers subject
to monitoring?
Yes.
The conversations
you have with co-workers
are subject to monitoring
by your employer in
the same way that
your conversations
with clients or customers
are. If you wear a
headset, you should
use the same care
you would if you were
talking to a customer
or client on the phone.
Some headsets have
"mute" buttons which
allow you to turn
off the transmitter
when you are not using
the telephone.
Can
my employer obtain
a record of my phone
calls?
Yes.
Telephone numbers
dialed from phone
extensions can be
recorded by a device
called a pen register.
It allows the employer
to see a list of phone
numbers dialed by
your extension and
the length of each
call. This information
may be used to evaluate
the amount of time
spent by employees
with clients.
Employers
often use pen registers
to monitor employees
with jobs in which
telephones are used
extensively. Frequently,
employees are concerned
that the information
gathered from the
pen register is unfairly
used to evaluate their
efficiency with clients
without consideration
of the quality of
service.
Computer
Monitoring
If
you have a computer
terminal at your job,
it may be your employer's
window into your workspace.
There are several
types of computer
monitoring.
- Employers can
use computer software
that enables them
to see what is
on the screen
or stored in the
employees' computer
terminals and
hard disks. Employers
can monitor Internet
usage such as
web-surfing and
electronic mail.
People involved
in intensive word-processing
and data entry
jobs may be subject
to keystroke monitoring.
Such systems tells
the manager how
many keystrokes
per hour each
employee is performing.
It also may inform
employees if they
are above or below
the standard number
of keystrokes
expected. Keystroke
monitoring has
been linked with
health problems
including stress
disabilities and
physical problems
like carpal tunnel
syndrome.
- Another computer
monitoring technique
allows employers
to keep track
of the amount
of time an employee
spends away from
the computer or
idle time at the
terminal.
Is
my employer allowed
to see what is on
my terminal while
I am working?
Generally,
yes. Since the employer
owns the computer
network and the terminals,
he or she is free
to use them to monitor
employees.
Employees
are given some protection
from computer and
other forms of electronic
monitoring under certain
circumstances. Union
contracts, for example,
may limit the employer's
right to monitor.
Also, public sector
employees may have
some minimal rights
under the United States
Constitution, in particular
the Fourth Amendment
which safeguards against
unreasonable search
and seizure.
There
may be some additional
rights for employees
in California given
specific statutes
of that state. See
the paper by Los Angeles
attorneys John Caragozian
and Donald Warner,
Jr., titled "Privacy Rights
of Employees Using
Workplace Computers
in California,"
published in 2000.
How
can I tell if I am
being monitored at
my terminal?
Most
computer monitoring
equipment allows employers
to monitor without
the employees' knowledge.
However, some employers
do notify employees
that monitoring takes
place. This information
may be communicated
in memos, employee
handbooks, union contracts,
at meetings or on
a sticker attached
to the computer.
In
most cases, employees
find out about computer
monitoring during
a performance evaluation
when the information
collected is used
to evaluate the employee's
work.
Electronic
Mail and Voice Mail
Is
electronic mail private?
What about voice mail?
In most cases, no.
If an electronic mail
(e-mail) system is
used at a company,
the employer owns
it and is allowed
to review its contents.
Messages sent within
the company as well
as those that are
sent from your terminal
to another company
or from another company
to you can be subject
to monitoring by your
employer. The
same holds true for
voice mail systems.
Several workplace
privacy court cases
have been decided
in the employer’s
favor. See for example:
When
I delete messages
from my terminal,
are they still in
the system?
Yes.
Electronic and voice
mail systems retain
messages in memory
even after they have
been deleted. Although
it appears they are
erased, they are often
permanently "backed
up" on magnetic tape,
along with other important
data from the computer
system.
My
employer's electronic
mail system has an
option for marking
messages as "private."
Are those messages
protected?
In
most cases, no. Many
electronic mail systems
have this option,
but it does not guarantee
your messages are
kept confidential.
An exception is when
an employer's written
electronic mail policy
states that messages
marked "private" are
kept confidential.
Even in this situation,
however, there may
be exceptions. (See
Smyth v. Pillsbury.)
Is
there ever a circumstance
in which my messages
are private?
Some
employers use encryption
to protect the privacy
of their employees'
electronic mail. Encryption
involves scrambling
the message at the
sender's terminal,
then unscrambling
the message at the
terminal of the receiver.
This ensures the message
is read only by the
sender and his or
her intended recipient.
While this system
prevents co-workers
and industrial "spies"
from reading your
electronic mail, your
employer may still
have access to the
unscrambled messages.
Workplace
Privacy Protections
What
about my employer's
promises regarding
e-mail and other workplace
privacy issues. Are
they legally binding?
Not
necessarily. Usually,
when an employer states
a policy regarding
any issue in the workplace,
including privacy
issues, that policy
is legally binding.
Policies can be communicated
in various ways: through
employee handbooks,
via memos, and in
union contracts. For
example, if an employer
explicitly states
that employees will
be notified when telephone
monitoring takes place,
the employer generally
must honor that policy.
There are usually
exceptions for investigations
of wrong-doing. If
you are not already
aware of your employer's
workplace privacy
policies, it is a
good idea to become
informed.
In
Smyth v. Pillsbury,
the employee’s termination
was upheld by the
court, even though
the company had a
policy of allowing
e-mail use for personal
communications. In
this case, the employee
had sent messages
to co-workers that
were deemed highly
inappropriate for
workplace communications.
(Smyth v. Pillsbury,
C.A. NO. 95-5712,
U.S. District Court
for the Eastern District
of Pennsylvania, Jan.18,
1996, Decided, Jan.
23, 1996, Filed. www.Loundy.com/CASES/Smyth_v_Pillsbury.html
)
Are
there any laws that
deal with workplace
privacy?
Currently
there are very few
laws regulating employee
monitoring. If you
are concerned about
this issue, contact
your federal legislators,
especially the members
of the House and Senate
Labor committees in
Congress. (See PRC
Fact Sheet No. 18
"Privacy in Cyberspace,"
www.privacyrights.org/fs/fs18-cyb.htm.)
Are
there organizations
that assist employees
regarding workplace
privacy?
Yes.
There are several
groups that are actively
involved in workplace
monitoring issues
and that advocate
stronger government
regulation of employee
monitoring activities.
National
Work Rights Institute
166 Wall St.
Princeton, NJ 08540
(609) 683-0313
Web: http://www.workrights.org/
9
to 5, the National
Association of Working
Women
231 W. Wisconsin Ave.
No. 900
Milwaukee, WI 53203
(414) 274-0925
Hotline (800) 522-0925
Web: http://www.9to5.org/
Workplace Fairness
American
Civil Liberties Union
125 Broad Street,
18th Floor
New York, NY 10004-2400
(212) 549-2500
Publications Ordering:
1-800-775-ACLU (2258)
Web: http://www.aclu.org/
The
American Civil Liberties
Union (ACLU) also
has information related
to workplace privacy
issues that are not
discussed in this
fact sheet. Some of
the issues of growing
concern involve psychological
testing, drug testing,
polygraph or lie-detector
testing and off-the-job
surveillance of employees.
Visit the ACLU’s Web
site at http://www.aclu.org/.
Labor
groups are taking
a stronger interest
in workplace monitoring.
If your union represents
employees’ interests
regarding workplace
monitoring, please
contact the Privacy
Rights Clearinghouse
so we can include
information in this
publication. prc@privacyrights.org
