Eyes are Watching Electronic Workplace Monitoring By Nicki Jhabvala Casena Leazer

HISTORY 101 … abridged Better technology = Greater Communication = More commonly used = Greater need for regulation

HISTORY 101 … abridged For businesses, regulation is with electronic monitoring

Forms of Monitoring o s oVideo Surveillance oVoice Recording oTelephone Recording; Retrieving Voic s oGPS Tracking oKeystrokes oWeb sites visited oTwo-way mirrors oWiggles

A Few Numbers AMA Survey of 526 American Companies  ~ 75% of companies use some form of monitoring  60% use software to monitor s and IM’s  51% monitor time spent on company phones & the number of outgoing calls made  51% use video surveillance in the office  8% use a GPS system to monitor company car  5% monitor company provided cell phones

Put it Into Perspective Those 51% who monitor phone calls … yeah, well it used to be only 9% in And those 51% who use video surveillance … was 33% in % have fired their employees for misusing internet …ouch.

The Debate Where is the line drawn between an employee’s right to privacy and an employer’s right to regulate the company?

Staffer’s Side Simply working for someone does not give them the right to intrude upon basic human rights and common courtesies.

WHY? (1) Trust: hiring implies mutual trust (2) Personal things: some things an employee may do at work are for personal reasons and, frankly, none of an employer’s business (3) Necessity: not all forms of monitoring are necessary or relevant to company business (4) Less Restrictive Means: If an employer is trying to foster productivity and maintain company loyalty, there are better ways of going about doing that. (6) Discrimination: acts of retaliation against employees (5) Stress: creates an unpleasant environment at work

Constitutional Protections The constitutions of 8 states explicitly protect privacy and offer greater protection of the rights of public employees than the U.S. Constitution does. However, these documents protect public employees and the protection does not extend to the private sector. Exception: California. It has extended its state constitution's protection of privacy to private AND public employees In Short: Not much constitutional protection for employees that is clearly and explicitly stated.

The Boss-man’s Side If an employee is under the umbrella of an employer either by physical location or through use of company equipment, employers have every right to monitor the behavior of its employees.

Why? (1) Electronic Communications Act of 1986 = OVERRULED! Established before internet, so it’s obsolete (2) Today’s Common Law: if you are using anything that is owned by the company, and employee should have no expectations of privacy (3) Prevention & Loyalty: don’t want company info from being leaked (4) Keeping Tabs: when they’re on the clock, employees to be doing work (5) Fend off Litigation: explicit proof for when an employee sues an employer (6) Federal Example: if the govt. can do it, I can too

Law is on the Boss-Man’s Side Can my employer listen to my phone calls at work? In most instances, YES! Only when all speakers are in California must consent be required for recording.

Law is on the Boss-Man’s Side If I wear a walkie-talkie headset, are my conversations with co-workers subject to monitoring? YES!

Law is on the Boss-Man’s Side Can my employer obtain a record of my phone calls? YES!

Law is on the Boss-Man’s Side Is my employer allowed to see what is on my terminal while I am working? Generally,YES! An Exception would be Union Contracts where state law doesn’t supercede them.

Law is on the Boss-Man’s Side Is electronic mail private? What about voice mail? NO! Not if sent or received from a company computer!

Law is on the Boss-Man’s Side When I delete messages from my terminal, are they still in the system? Yessirreee!

Law is on the Boss-Man’s Side My employer's electronic mail system has an option for marking messages as "private." Are those messages protected? NOPE!

Law is on the Boss-Man’s Side What about my employer's promises regarding and other workplace privacy issues. Are they legally binding? Ummm …. NO!

Boss-Man’s Bottom Line Your purpose at work is to work. Read the company manual and make sure you are not violating any rules because your boss is watching.

Case Study (2001) An employee was arrested after a co-worker found him looking at pornographic sites at work After arrested, company searched his computer files and s and found nude/semi-nude photos of his 10- year-old stepdaughter, which he used to gain access to a child porn site and s he sent to others regarding child pornography Mother of 10-year-old sued the company because she felt they did not do a good job of catching the employee’s activities earlier MOM WON, Company learned from mistake AKA now uses electronic monitoring

Cramer v. Consolidated Freightways Consolidated installed secret video taping and two-way mirrors in bathrooms to catch employees using illegal drugs. Lloyd Cramer and other employees of Consolidated sued for invasion of privacy Employees and Consolidated part of collective bargaining agreement that covered the uses the employer could make of video cameras to discipline or discharge an employee California prohibits two-way mirror surveillance CONSOLIDATED LOST Effect of Case: company contractual agreements are pre- empted by state laws and regulations

So What Can You Tell Ma & Pa ? That your tuition bill is worth every penny … ‘Cause you won some candy in Jeopardy today!

Jeopardy NumbersFormsLawEthicsReasons $100 $200 $300 $400 $500 $100 $200 $300 $400 $500 Final Jeopardy

$100 Question from Numbers According to the 2005 AMA Survey, the percentage of American companies use some form of monitoring.

$100 Answer from Numbers What is 75 percent?

$200 Question from Numbers According to the 2005 AMA Survey, this percentage of American businesses monitor company cars with a GPS System.

$200 Answer from Numbers What is 8 percent?

$300 Question from Numbers According to the 2005 AMA Survey, this percentage of American businesses use video surveillance.

$300 Answer from Numbers What is 51 percent?

$400 Question from Numbers According to the 2001 AMA survey, this percentage of American businesses used video surveillance.

$400 Answer from Numbers What is 33 percent?

$500 Question from Numbers According to the 2005 AMA survey, this percentage of American businesses actually fired those employees who misused the Internet.

$500 Answer from Numbers What is 26 percent?

$100 Question from Forms This is the most commonly used form of electronic monitoring.

$100 Answer from Forms What is monitoring?

$200 Question from Forms In Cramer v. Consolidated, the defendant was accused of using this type of electronic monitoring.

$200 Answer from Forms What is video surveillance OR Two-way mirrors?

$300 Question from Forms Keeping tabs on an employee in the restroom is often done with this type of monitoring.

$300 Answer from Forms What is video surveillance.

$400 Question from Forms If you decided to use the company car to take your date out to dinner, I could hunt you down with this form of monitoring.

$400 Answer from Forms What is GPS tracking?

$500 Question from Forms If you called your mommy, I could easily monitor your call with this.

$500 Answer from Forms What is telephone recording?

$100 Question from Law True or False: If you was your employer and you used the company’s computer, I could keep track of your s from the computer.

$100 Answer from Law What is TRUE?

$200 Question from Law This act was basically useless in terms of regulating the Internet.

$200 Answer from Law The Electronic Communications Act

$300 Question from Law True or False: If you were my employee, you could sue me for invasion of privacy if I monitored your telephone calls from the company’s phone.

$300 Answer from Law What is FALSE?

$400 Question from Law True or False: Just because your s are labeled as “private,” they really aren’t.

$400 Answer from Law What is TRUE?

$500 Question from Law True or False: The 8 state constitutions that explicitly protect individual’s workplace privacy generally serve private employees only.

$500 Answer from Law What is FALSE? Public only.

$100 Question from Ethics This is the main argument employees have with electronic monitoring in the workplace.

$100 Answer from Ethics What is Privacy?

$200 Question from Ethics True or False: Most people are OK with their employers tallying their trips to the restroom.

$200 Answer from Ethics What is “Dunno, whatever floats your boat, I guess.”

$300 Question from Ethics True or False: Companies believe they have a right to maintain control of business operations.

$300 Answer from Ethics What is True? (generally)

$400 Question from Ethics According to most employees, being hired implies this.

$400 Answer from Ethics What is trust?

$500 Question from Ethics Monitoring that serves as an act of retaliation against employees is commonly considered to be this.

$500 Answer from Ethics What is discrimination?

$100 Question from Reasons One reason companies give for using monitoring is that it provides explicit proof for this.

$100 Answer from Reasons What is fending off litigation?

$200 Question from Reasons One reason companies give for using monitoring is that these people use it.

$200 Answer from Reasons What is the Federal Government?

$300 Question from Reasons A reason employees give for opposing monitoring is that it is not the least of this type of means.

$300 Answer from Reasons What is restrictive?

$400 Question from Reasons This type of law allows employers to monitor their employees in the workplace.

$400 Answer from Reasons What is Common Law?

$500 Question from Reasons Most employees argue that monitoring creates this in the workplace.

$500 Answer from Reasons What is stress?

Final Jeopardy This person has the greatest legal weight (as of now) in the debate of electronic monitoring.

Final Jeopardy Answer Who is Boss Man ? Other accepted answers : Boss Lady Employer BMOC Head Honcho Man in Charge Top Dog Big Shot