Employee Communications Privacy

INTRODUCTION

As society progresses further into the 21st Century, more employees are using electronic communications in their everyday jobs. Employees assume they have privacy protection in the workplace, although many do not. Privacy is not explicitly covered in the United States Constitution. Employee privacy is not only an issue with email. Many employers are beginning to monitor their employee's work habits, to include phone calls, web sites they visit, and even how long they take going to the bathroom.

There is a constant struggle between employers and employees over the balance of workplace monitoring. Employers want to make sure productivity is as high as it can be, while employees want to make sure they have some rights to privacy. The boundaries of this struggle are ever evolving and expanding. The single important question is: Should employers be allowed to monitor their employees?

BACKGROUND

Employers have a couple different ways of gathering information. According to [1], a full email application will gather all of the following:

Recipient Sender Number of words

Amount of time employee spent reading email Amount of time Employee spent writing email Type of email (personal , business)

A more, non-obtrusive email gathering program could include the following information:

Employee Name The Date Time email was looked at by employee

These are just two examples of collecting information from email. There are many other ways of collecting information, including internet browsing history, key loggers, and others.

Generally speaking, there are not many laws that deal with electronic monitoring in the workplace. The 4th amendment of the United States Constitution does not explicitly cover personal privacy. Because of this, employees may not have protection of privacy at their place of employment. The protection also depends on if the employee works in the private or public sector of industry. Employees who work in the private sector are less likely to be covered [1]. The constitutions of eight states have more explicit protections, but again only cover the public employee.

Since the Constitution has no explicit protection for personal privacy, perhaps the federal and/or state level has some statutes regarding private sector personal privacy. In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA). The ECPA "prohibits the intentional or willful interception, accession, disclosure, or use of one's electronic communication" [2]. There are 3 exceptions to the ECPA. They are: the provider exception, the ordinary course of business exception, and the consent exception [1]. The provider exception allows for monitoring when the employee is using services owned by the company, i.e. a company owned email address. The ordinary course of business exception is based on two methods: content and context. Content allows for monitoring of "business related" communications; context examines the reason the company decided to monitor the communications. And finally, and perhaps the easiest to obtain, is the consent exception. If an employee gives consent for the company to monitor them, then it is ok. The given consent is most likely in the form of a policy that is automatically accepted upon hire.

There have been a couple of cases where an employee claimed invasion of privacy by an employer. In case [3], Smyth claimed an invasion of privacy. He had sent unprofessional remarks to his supervisor and they terminated him for it. Since the communication was over company owned email services, and even though the company had promised not to read his email, the court ruled in favor of the company. According to the final order:

"[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost." [3]

Another such case was [4]. The employee claimed invasion of privacy after a record of his eBay transactions showed that he was stealing from the company. He stated that the employer either obtained the records from his online account using his password, or by searching his briefcase. The court ruled that even if the employer had used his password, which may have been discovered by internet activity monitoring, it is not an invasion of privacy since the company's policy directed that employee computers were subject to monitoring, and there would be no expectation of privacy in this case [4].

DISCUSSION

The main focus of the argument could be summed up in one question: Should we? Kant, with his categorical imperative, states that we should "act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never simply as a means" [5]. With this, Kant is defining that people should never be treated as machines, rather as living beings with dignity. He states that people also have a will, which implies knowledge and freedom to do as one may wish.

There is also a relationship

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