Ethical Decision Making: Technology and Privacy in the Workplace

Introduction
 The technological revolution is largely responsible for globalization but has
brought with it many challenges as opportunities.
 Many of these challenges raise ethical questions particularly as this
technology impacts employee and consumer privacy.
 Privacy: issues in the workplace raise ethical issues involving individual
rights as well as those involving utilitarian consequences.
 Workplace privacy issues evoke and inherent conflict between
what some may consider to be a fundamental right of the employee to
be free from wrongful intrusions into his/her personal affairs.
 This conflict can arise in the workplace environment through the
regulation of personal activities or personal choices or through
various forms of monitoring.
Forms of monitoring: drug testing, electronic surveillance of email
 Contrasting utilitarian arguments can be offered on the ethics of monitoring
employees. The employer can argue that the only way to manage the
workplace effectively and efficiently is to maintain knowledge about and
control over all that takes place within it.

The Right to Privacy

 With the tremendous increase in computer technology in recent decades,
calls for greater protection of privacy rights have increased.
Defining Privacy:
 Two general and connected understandings of privacy can be found in the
legal and philosophical literature on this topic.
 privacy as a right to be left alone within a personal zone of solitude
 privacy as a right to control information about oneself
 Privacy is important because it serves to establish the boundary between
individuals and thereby serves to define ones individuality.
 The right to control certain extremely personal decisions and information
helps determine the kind of person we become
 To the degree that we value the inherent dignity of each individual and the
right of each person to be treated with respect, we must recognize that
certain personal decisions and information is rightfully the exclusive domain
of the individual.
 George Brenkert argued that whether my privacy is violated or not by a
disclosure of personal information depends on my relationship with the
person or persons who come to know of that information
 Limiting access of personal information to only those with whom one has a
personal relationship with is one important way to preserve ones own
personal integrity and individuality.
 It is the choice of limitation or control that is the source of one's sense of
privacy
Ethical Sources of a Right to Privacy
  The right to privacy is founded in the individuals fundamental, universal right
to autonomy, in our right to make decisions about our personal existence
without restriction
 This right is restricted by a social contract in our culture that prevents us
from infringing on someone else's right to her or his personal autonomy.
 Philosopher Patricia Werhane describes this boundary as a reciprocal
obligation that is for an individual to expect respect for her or his personal
autonomy, that individual has a reciprocal obligation to respect the autonomy
of others.
 Applying this to the workplace, Werhane’s concept of reciprocal obligation
implies that while an employee has an obligation to respect the goals and
property of the employer, the employer has a reciprocal obligation to respect
the rights of the employee as well, including the employee’s right to privacy.
 Ethicists Thomas Donaldson and Thomas Dunfee have developed an
approach to ethical analysis that seeks to differentiate between those values
that are fundamental across culture and theory hypernorms and those
values that are determined within moral free space and that are not
hypernorms.
 Hypernorms: Donaldson and Dunfee propose that we look to the
convergence of religious, cultural, and philosophical beliefs around certain
core principles as a clue to the identification of hypernorms. Examples of
hypernorms are freedom of speech, the right to personal freedom, the right
to physical movement, and informed consent. Individual privacy is at the core
of each of these things
 Ultimately the failure to protect privacy may lead to an inability to protect
personal freedom and autonomy.
 Legal analysis of privacy using property rights perspective yield additional
insight. “Property” is an individual’s life and all non-procreative derivative of
his/her life. Derivatives may include thoughts, ideas, as well as personal
information.
 The concept of property rights involves a determination of who maintains
control over tangibles and intangibles including therefore personal
information.
 If one has a right to her personal information someone else has a
commensurate duty to observe that right.
 Private property rights depend upon the existence and enforcement of a set
of rules that define who has a right to undertake which activities on their
own initiative and how the returns from those activities will be allocated. In
other words, whether an individual has the exclusive right to her personal
information depends upon the existence and enforcement of a set of rules
giving the individual that right.

Legal Sources of a Right to Privacy:

  Privacy can be legally protected in three ways: by the constitution (federal or
state), by federal or state statuses, and by the common law. Common law
refers to the body of law comprised of the decisions handed down by courts
rather than specified in any particular statuses or regulations
 Constitutions Fourth Amendment protection against unreasonable search
and seizure governs only the public sector workplace because the
constitution applies only to state action.
 Statuses also offer little if any protection from workplace intrusions. The
Electronic Communications Privacy Act of 1986 prohibits the interception or
unauthorized access of stored communications. However, courts have ruled
that interception applies only to messages in transit and not to messages that
have actually reached the company’s computers.
 Invasion of privacy claim which most people are familiar with is one
developed through case law called intrusion into seclusion. This legal
violation occurs when someone intentionally intrudes on the private affairs
of another when the intrusion would be highly offensive to a reasonable
person.

Global Applications
 This somewhat unpredictable regime of privacy protection is all the more
problematic to maintain when one considers the implications of the
European Union’s Directive on Personal Data Collection
 The directive strives to harmonize all the various means of protecting
personal data throughout the European Union
 Safe Harbor Exception: If a firm in the US maintains a certain level of
protection of information and satisfies these requirements, the directive
allows the information to transfer from firms in the EU to firms in the US

 In general one could argue that personal information should remain private
unless a relationship exists between the business and the individual that
legitimates collecting and using personal information about that individual.
 If we adopt something like a contractual model of employment where the
conditions and terms of employment are subjected to the mutual and
informed consent of both parties, then employees consent would become one
major condition on what information employers can collect
 Summary: Employee privacy is violated whenever
 Employers infringe upon personal decisions that are not relevant o
the employment contract
 Personal information that is not relevant to that contract is
collected, stored, or used without the informed consent of the
employee.
Linking the Value of Privacy to the Ethical Implications of Technology
Information and Privacy
 A business needs to be able to anticipate the perceptions of its stockholders
in order to be able to make the most effective decisions for its long term
sustainability.
 Economist Antonio Argandona states that if new technology is dependant on
and has as its substance information and data, significant moral
requirements should be imposed on that information. He suggests the
following as necessary elements:
1. Truthfullness and accuracy: the person providing the information
must ensure that it is truthful and accurate at least to a reasonable
degree
2. Respect for privacy: the person recieving or accumulating information
must take into account the ethical limits of inidividuals and
organizations privacy. This would include issues relating to company
secrets, espionage, and intelligence gathering
3. Respect for property and safety rights : areas of potential vulnerabiltiy
include network security, sabotage, theft of information and
impersonation, are enahcned and thus must be protected
4. Accountability: technology allows for greater anonymity and distance,
requiring a concurrent increased exigency for personal responsibility
and accountability

Managing Employees through Monitoring

 One of the most prevalent forms of information gathering in the workplace in
particular is monitoring employees work, and technology has afforded
employers enormous abilities to do so at low costs.
 Email Monitoring trend witnessed vast increase
 Internet use monitoring: evolving with the rise of social media and social
networking
 Many of the ethical issues that arise in the area of managing information are
not readily visible
 When we don't completelty understand technology, we might not understand
the ethical implications of our decisions. When that occurs, we are not able to
protect our own information effectivley because we may not understand the
impact on our autonomy, the control of our information, our repcirocal
obligations, or even what might be best for our own personal existence.
 These ethical issues like not knowing who is reading our emails or what they
can do with these emails may be compounded by the fact that a knowledge
gap exists between people who do understand technology and others who
are unable to protect themselves precisley because they don't understand the
technology.
  Conflict with developing technology that supervisor can access someones
emails without them ever realizing and can see very personal stuff. Also
other conflict is that technology has allowed employees to always be
connected to work: employer can reach employee at any time. Is it reasonable
to reach employee when they are on vacation? How long should they take to
asnwer? Etc...
 Another challenge is accessibility of technology is the facelessness that
results from its use. If we have to face someone as we make our decisions, we
are more likely to care about the impact of that decision on that person.
There is an ease of informality when writing.
 Why do firms monitor technology use?
1. Employers need to manage their workplaces to place workers in
appropriate positions to ensure compliance with affirmative action
requirements, or to adminster workplace benefits.
2. Monitoring also allows the manager to ensure effective, productive
performance by preventing the loss of productivitiy to innapropriate
technology use.
3. Monitoring also offers an employer a method by which to protect its
other resources. Employers use monitoring to protect proprietary
information and to gaurd against theft, to protect their investment in
equipment and bandwith, and to protect against legal liability.
Monitoring Employees through Drug Testing
 The employer has a strong argument in favor of drug or other substance
testing based on the law. Because the employer is often responsible for legal
violations its employees committed in the course of their job, the employers
interest in retaining control over every aspect of the work environment
increases
 On other hand employees may argue that their drug usgae is only relevant if
it impacts their job performance; until it does employer has no basis for
testing
  Where public safety is at risk, a compelling public interest claim for a
utilitarian perspective that may be suffeciently persuasive to out-weigh any
one individuals right to privacy or right to control information about oneself.

Other Forms of Monitoring

 Employers are limited in their other forms of testing such as polygraphs or
medical tests
 With regard to medical information specifically, employers decisions are not
only goverened by the Americans with Disabilities Act but also by the Health
Insurance Portability and Accountability Act
 Health Insurance Portability and Accountability Act stipulates that
employers cannot use protected health information in making employment
decisions without prior consent
 protected health info includes all the medical records or other individualy
identifiable health information
 In recent years, polygraph, drug testing, physical and electronic surveillance,
third party background checks, and psychological testing have all been used
as means to gain information about employees.
 Genetic Information Non Discrimination Act prohibits discriminatory
treatment in employment based on genetic information (including any
disease or disorder, genetic test result of family member and includes all
relatives to fourth degree of kinship)
 Exceptions for GINA are when employer needs to collection genetic
information for the family medical leave or to monitor the biological effects of
toxic substances in the workplace
Business Reasons To Limit Monitoring:
1. Concern that monitoring may create a hostile and suspicious work place. By
reducing the level of worker autonomy and respect as well as workers right
to control their environment, the employer has neglected to consider the key
stakeholders critical to business sucess sucess in many ways – the worker
2. Monitoring may arguably constrain effective performance since it can cause
increased stress and pressure negativey impacting performance and having
the pontential to cause physical disorders such as carpal tunnel syndrome
(stress, fatigue, anxiety, exhaustion, depression). This will lead to lower
productivity and performance from worker that will lead to higher costs and
fewer returns to the employer
3. Employees claim that monitoring is an inherent invasion of privacy and that
violates their fundemental human right to privacy
Balancing Interests:
 One suggestion is that to give employees due notice that they will be
monitored plus the opportunity to avoid monitoring in some situations
 such approach may not solve all concerns about monitoring because by
telling employees when and where theyll be monitored theyll make sure to
behave their best in those situations. This is called the hawthorne effect.
 Another suggestion is to strive toward a balance that respects individual
dignity while also holding individuals accountable for their particular roles in
the organization
 Solution: A monitoring program developed according to the mission of the
organization then implemented in a manner that remains accountable to the
impacted employees approaches that balance. The following parameters for a
monitoring policy endeavors to accomplish the goals described earlier.
 no monitoring in private areas like restrooms
  monitoring limited to within the workplace
 employees should have access to information gathered through
monitoring
 no secret monitoring
 monitoring should only result in attaining some business interest
 employer may only collect job related infromation
 agreement regarding disclosure of info gained through monitoring
 prohibition of discrimination by employers based on off work
activities

These parameters allow the employer to effectively and ethically supervise the work
employees do to protect against misuse of resources, and to have an appropriate
mechanism by which to evaluate each workers performance thus repsecting the
legitimate business interest of the employer

D
Regulation of Off-Work Acts
 Dating colleauges at work; political beliefs & associations; smoking (off
campus needs to be); decrimination of weight, marital status (if married to
someone they dont like or conflict of interest)
 Most statuses or common law decisions provide for employer defenses for
those rules and they are:
1. Reasonably and rationabley related to the employment activities of a
patricular employee
2. Constitute a "bona fide occupational requirement" meaning a rule that
is reasonablly related to that particular position
3. Are necessary to avoid conflict of interest or appearance of conflict of
interest
 the question of monitoring and managing employee online communications
while the employee is off work is relevant to the issues of technology
monitoring
 what employees post on social media ex facebook about their employment
situation and the post goes viral the corporate repuatations are at stake and
legal consequences can be severe.
 Different countries have different rules regarding employee privacy. Some of
them dont require employees to share their email passwords and different
rules about collecting personal information
 From an employees perspective it is important to consider choices before
employment and the impact they will have on an employers later decision
about hiring you
 The the employers perspective it is important to understand when it is
valuable to test prospective employees are why it might be effective to refrain
from testing in the hiring process.

Privacy Rights since September 11, 2011

 The events of 9/11 had a major impact on privacy within the united states
and on the employment environment in pactricular.
 Increased request for expansion of surveillance and information gathering
authority occured
 The most public and publicized of these modifications was the adoption and
implementation of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT) Act of 2001
 This act expands the states right with regard to internet surveillance
technology including workplace surveillance
 These provision allow the government to monitor anyone on the internet
simply by conteding that the information is relevant to an ongoing criminal
investigation
 All financial institutions must now reprot suspicious activities in financial
transactions and keep records of foreign national employees while also
complying with anti descrimination laws discussed throughout this text
 The Patriot act has direct implications for businisses because it relies on their
information gathering and many other requests.