An employee's right to privacy in the workplace is becoming an increasingly controversial issue, considering that today’s duties are so much dependent on the internet. The issue of privacy has even become a legal topic, with questions bordering on the extent to which an employer is allowed to monitor his employees. The question is no longer whether it is proper to monitor employees, but rather, to what extent should the monitoring be allowed. Although employees may feel that monitoring infringes their right to privacy, the law provides for particular circumstances when employers are allowed to monitor their employees.
The federal Electronic Communications Privacy Act protects certain various aspects of the employee’s privacy at the workplace including private telephone communication by the employee and internet usage using the employer’s computer gadgets. However, there are some issues that may be protected by the law, but they should be clearly stated in the employment contract mostly to protect the employer. It should be noted that although the employment contract is drafted with guidance of the laws, the drafting is done by the employer and it is no surprise that it focuses more on the rights of the employer than those of the employee (Lane, 2003). This paper looks at the employee’s right to privacy at the workplace, focusing on electronic monitoring, romance in the workplace, employee drug testing and employee honesty testing.
Electronic monitoring involves video surveillance, listening into employees’ telephone conversations, checking computer usage by the employee and checking employees’ movements on GPS. While electronic monitoring was introduced specifically to monitor productivity of the employees, today it is threatening the privacy of the employee at the workplace, especially where it is done without individual cause, or where there are no written policies to guide the monitoring process. While electronic monitoring may be beneficial to the employer, the manner in which it is done could be infringing on the employee’s right to privacy. Lane (2003) is worried that many employers have not made any distinction between personal and business communication by the employee.
Electronic monitoring of employees by their employers is becoming a big problem every passing day. The issue was almost non-existent about 3 decades ago. According to Hurbbartt (1998), the first assessment was done by the Congressional Office of Technology in 1987 which reported that about 7% of employees were affected. Another assessment was done in 1993 by Mac World and it was reported that 20% of employees were affected. Subsequent studies have shown that the issue of employee monitoring is increasingly becoming common. The American Management Association carried out a report in 2001 and reported that 78.4% of employees were affected by electronic monitoring by their employers. This figure had risen to 92% in 2003.
The above figures are shocking considering that about 75% of employers monitor their employees without any particular cause. It is also reported that about 20% of employers do not have a written monitoring policy, and 50% of those who have written policies have not bothered to educate their employees about the same policies. Furthermore, about 25% of employers do not have safeguards against abuse of the electronic monitoring process (Lane, 2003).
The Electronic Communications Privacy Act of 1986 prohibits the interception, disclosure or use of a wire, oral or electronic communication of the employee. Hurbbartt (1998) explains that the protection applies to businesses involved in interstate commerce and conversations between the employees that the employer may overhear when the employees are wearing headphones. A breach of this law invites both criminal and civil causes of action.
However, there are exceptions to this prohibition. The first exception allows communication services providers to listen into their employee’s communication for quality monitoring. A second exception allows interception when there is consent from the employee. This exception requires that the employee gets prior consent from the employee before monitoring them. The consent may be implied from the fact that the employee has signed an employment contract that expressly allows the employer to monitor the employee as ruled in the case Watkins v. L.M. Berry & Co., 704 F. 2d 577 (11th Cir. 1983). The third exception allows for wire eavesdropping in the ordinary course of business as ruled in the case of U.S. v. Harpel, 493 F. 2d 346 (10th Cir. 1974) and 15U.S. v. Axselle, 604 F. 2d 414 (5th Cir. 1980).
As people spend more time at work than any other place, interactions with colleagues may lead to romantic affairs between employees. Is it fair for employees to check who is having an affair with who in the workplace? Lane (2003) observes that the number of employers with written policies on office romance more than doubled since the 1990s. The reason for adopting such policies has been stemmed from the fact that employers may not win in an attempt to stop workplace romance.
In as much as workplace romance may be a personal issue, many organizations have policies that provide guidance on the conduct of employees. One area of concern is love affairs between supervisors and subordinates. The argument against this form of pairing is stemmed on accountability. It is believed that a supervisor who has a love affair with a direct subordinate may not hold him or her accountable due obvious conflict of interest and this may affect the quality of work. Having realized that it may be futile to stop romantic relationships in the office, many employers adopt the interdepartmental transfers to separate lovers who have direct reporting relationships in the office.
Another justification for policies on workplace romance is derived from claims of sexual harassment (Hurbbartt, 1998). It may not be clear, especially in cases of love gone sour, whether there was consent or not. A jilted lover may accuse the partner of sexual harassment. This has forced many employers to draft policies to safeguard both the employee and the employer’s reputation.
Employee Drug Testing
The world is increasingly becoming liberal and many people feel that whatever they are consuming is nobody’s business. However, an employer may decide to conduct drug testing to prospective employees. There are several rules on drug testing. While most private employers are not required to test for drug or alcohol use by their employees, there are exceptions where it is a must for the test to be done and these exceptions do not require consent from the employee.
Employers in the transportation and other industries which are considered to be safety-sensitive must conduct tests for drug and alcohol use among their employees. These requirements are regulated by various federal agencies. The Federal Highway Administration, Federal Aviation Administration and the U.S Coast Guard require that employers in trucking, aviation and mass transit industries conduct alcohol and drug usage among their employees (Lane, 2003).
Private employers may also conduct drug tests for different reasons among them:
To qualify for workers' compensation discounts- The campaign by different states to ensure a drug-free state encourage employers to maintain drug-free workplaces. For this reason, the states may offer discount on worker’s compensation insurance premiums if the employers take steps towards this campaign. Employers may therefore conduct drug tests to prove that they qualify for the discounts.
To avoid legal liability- An employer is legally liable for injuries caused at the workplace by an intoxicated employee. Workplace drug and alcohol use may also violate OSHA and state occupational safety laws. To avoid such liabilities, the employer may conduct drug tests to ensure that all the employees are sober while at the workplace.
To maintain productivity and save money- Drug and alcohol usage has been reported to cause decline in productivity by employees. It has been reported that the United States losses about $80 billion annually from problems relating to alcohol and drug usage. It is therefore paramount to encourage employers to conduct drug tests to ensure a sober workforce.
There are however legal limits to drug testing. According to Lane (2003), the Americans with Disabilities Act protects applicants who are taking medication for a disability from testing since some prescribed drugs may test positive during drug testing therefore leading to the applicants’ disqualification. The law also prohibits testing for a select group based on race or gender. The testing may also be contested where it is clear that the procedure is an express violation of the employees’ personal privacy.
Integrity testing is meant to determine whether an applicant will in future lie, cheat or steal in the ordinary course of his work. This is mostly applicable for employees in the retail, security and the banking sectors. The tests are mainly done to determine the employee’s views on various aspects of the society like corporate governance, law enforcement and politics. These tests are carried out as due diligence before hiring an individual. Integrity testing is allowed by the law as long as it is not conducted in a way seen to discriminating against a particular group of people. For example, it would be a violation of privacy rights if a group who subscribe to a particular religion is selected for integrity testing.
Hurbbartt, W. S. (1998). The New Battle over Workplace Privacy: Safe Practices to Minimize Conflict, Confusion, and Litigation. AMACOM.
Lane, F.S. (2003). Naked Employee, The: How Technology Is Compromising Workplace Privacy. AMACOM.