Employee Privacy Issues

Navneet Kaur, Neha Goyal, Nidhi Chaurasia, Mohd. Asif Anees

 Privacy
• What is “privacy in the workplace” and why is it so
important to every employer?
• Is acknowledged today to be a fundamental right, yet
corporate behaviour and polices often threaten privacy,
in most case of employees
•      “
Privacy is not something that I'm merely entitled to, it's
an absolute prerequisite.
”
Marlon Brandon
 Employee Privacy
• Many Americans take their right to privacy for granted.
But most don't realize that this right doesn't extend into
the place where they spend most of their waking hours:
their workplace.
• "There is very little, if any, privacy in the workplace,
particularly in the private sector," says Jeremy Gruber,
legal director of the National Workrights Institute.
• "Privacy is one of the most-violated principles in the
American workplace.
• Privacy is an example of a human/civic right that is limited
in the workplace
 Hostile Work Environment
• Employers are often faced with Title VII claims by
employees in which an employee claims that the
employer knew or should have known that another
employee was harassing or discriminating against one
or more employees and failed to prevent it.
• Employers provide employees with access to its
computers, e-mail and Internet services in order to
facilitate business communications; the intended use of
these technologies. Therefore, when employees use
the employer's technology for another purpose, courts
have dealt with these issues as one might expect.
• For example, derogatory and potentially defamatory
material posted to a chat room
 Negligent Retention
• For example, a male employee,
• Likewise, a third party injured by
an employee through the use of
technology owned by the company
can subject the company to liability
for “negligently retaining” the
employee that caused the injury.
Therefore, knowing what
employees are doing while at work
is the key to avoiding claims from
other employees, as well as from
third parties.
using the company computer
for purposes of cyber seducing
while at work, entered a chat
room and made contact with a
woman and persuaded her to
meet. The woman sued the
employee as he had AIDS. The
court was less clear in
analyzing whether the
employer could have known or
should have known what its
employee was doing.
 Employee Responsibility
• Invasion of employee privacy
complaints can result when
employers seek to enforce the
appropriate use of electronic
systems policies or violates its own
policies.
• Generally speaking, privacy rights
are granted by specific laws, rules,
or regulations. Some of those
rights apply in the workplace and •
some don't. And even if there is no
specific law, a right to privacy can
be based on the legal common law
concept of having a "reasonable
expectation of privacy."
• For employers and employees, privacy issues
have become increasingly prevalent in the
workplace, and with the increased use of
electronic resources, privacy at work is even
more complex. So it is important that
managers and supervisors have a basic
understanding of a few of the more frequent
privacy rights and issues that can arise, as
well as the boundaries that may apply.
There are several areas of human capital
management in which privacy rights are
established. Whether federal, state, or local
law creates the right, you should be aware
of the issues. Here is a general overview
• Personnel Records: Employees
generally have a right to privacy
in their personnel records, except
in a few specific circumstances.
That means employers are
generally not permitted to
disclose personnel records to
third parties without a legal
obligation to do so or the
employee's permission. The right
can be found in state statutes,
codes, or by judicial case law.
Also, employees in most states
have the right to request access
to their personnel files upon
proper notice.
• Social Security Numbers: With the
increase in identity theft, various
statutory laws have been enacted to
protect the privacy of social security
numbers. For example, many states
expressly limit and/or prohibit the use
of all or part of social security numbers
as computer passwords or employee ID
numbers. Some states also limit
whether and to what extent social
security numbers can be used on
itemized wage statements. There also
are many state laws that require
extensive disclosures by employers in
the event a company suspects that
certain kinds of personal information
about employees or belonging to them
may have been compromised.
 Monitoring and Eavesdropping:
• There are extensive anti-eavesdropping laws that prohibit
tapping into or listening to telephone conversations,
voicemail systems, and electronic communications systems.
For example, some states have civil and criminal statutes
that require both parties to a telephone conversation to
consent to being recorded or listened to, while other states
require that only one party consent. Surveillance by camera
is also subject to various legal requirements regarding
notice and disclosure to employees.
 WHY THE MONITORING?
• Employee use of company-owned hardware & software
for personal use during work hours affects productivity
• Such conduct can also lead to all manner of legal
problems:
– Sexual harassment
– Discrimination
– Anonymous web posting (trade secrets & defamation)
– Harm to 3rd parties
– Discovery in litigation
 Whether and How Much to Monitor
• Negligent retention and hostile work
environment issues require an employer to
responsibly manage and supervise its
employees and their activities while at
work in order to avoid any harm from
coming to the public at large.
• Technology has made the monitoring of
employee activity possible.
• However, the dilemma is deciding whether
to use the technology and how much
monitoring is sufficient to protect the
employer's interests.
• The more you monitor,
the greater the likelihood
of an employee claim for
invasion of privacy.  
• On the other hand, failing
to monitor can expose an
employer to crushing
liability.  In addition,
failing to take action, if a
problem is uncovered,
also creates liability for
the employer.
 Avoidance through monitoring

• In almost every lawsuit against an employer, among the first

things sought by the plaintiff are all documents that have
anything to do with the facts alleged in the suit.
•  As Bill Gates, Ollie North and Al Gore learned, e-mails can
almost always be retrieved even if they have been “deleted”
from the system.
• Employees commonly send e-mails containing information that
they would never put into a hard copy memo or letter.
• If employees know their e-mail is being monitored, they may be
less likely to say things that they would not want to see
presented against them in court.
Ways of monitoring
 Ways of monitoring
• Employee Surveillance
Employers should carefully
research local employee privacy
laws. While the Federal Electronic
Communications Privacy Act
provides some protection for
workers, the types of monitoring
that may be conducted vary widely
from state to state.
• Drug and Alcohol Testing
The Supreme Court has upheld
an employer's right to test
employees for drugs and
alcohol. Still, some state and
local governments have passed
laws prohibiting testing, and the
subject is always bound to raise
privacy law issues.

Off-Duty Behavior
In most states, employers may discipline or terminate employees for off-duty behavior
that might embarrass the company or disrupt its operations, though some methods of
obtaining information about off-duty conduct may infringe on privacy rights. Some
states, such as Michigan and Illinois, restrict employers from gathering information
regarding an employee's off-duty behavior
 Kinds of monitoring
 Lie Detector Tests
The federal Polygraph Protection Act
protects most American workers
from taking a lie detector test as a
condition of employment or
continued employment. In many
states, the law does not apply to
applicants in law enforcement
agencies, persons in sensitive
positions relating to national
security, or applicants in drug
manufacturing and distributing.
 Personal Appearance
Employers are generally free to
set reasonable guidelines
concerning neatness, dress,
appearance, and hygiene.
However, such codes are always
in danger of legal attack, usually
on the grounds that they are
discriminatory or violate a
person's right to privacy. In some
states, employers requiring
uniforms may be required to
supply or compensate employees
for the uniform
 Kinds of monitoring
• Psychological and Personality Tests
Federal law does not prohibit an employer from requiring an employee or
prospective employee to take a psychological or personality test.

• Searches
Private employers may generally conduct on-premises searches of
employer-owned vehicles, equipment, desks, lockers, briefcases, and other
items. In most states, searches of an employee's personal items may be
legal if the employee has a reasonable expectation of privacy. Public
employees enjoy constitutional protections that guard against many kinds
of searches. Employers of all kinds have a responsibility to keep their
employees’ personal information safe. They should not disclose it to third
parties except under extraordinary circumstances (for example, if the police
need it as part of a criminal investigation).
 Other kinds of monitoring
• Other types of monitoring at work can include:
• keyboard keystroke monitoring
• monitoring time spent on the phone, numbers called and actual taping of
conversations
• satellite technology to monitor use of company cars, cell phones and pagers
• Keyboard keystroke monitoring can track key words typed on a keyboard and
can also track how fast employees are typing. "There is a problem with worker
monitoring when it leads to an oppressive work environment," says Jay
Stanley, communications director for the American Civil Liberties Union
Technology and Liberty Project. "That can happen when employers can
monitor things like keystrokes."
 Phone and video surveillance
Phone surveillance includes:
• monitoring and taping employee phone
conversations
• blocking certain numbers such as 900 numbers
• monitoring time spent on the phone
• tracking numbers dialed
• taping and reviewing voice mail
• monitoring conversations between workers
• According to the 2005 surveillance survey, 57
percent of employers surveyed block
unauthorized phone numbers, and 51 percent
monitor the amount of time spent on the
phone and the numbers dialed. More than 80
percent of the employers who monitor these
activities notify employees about what they are
doing.
 Surveillance Advantages Of Cameras
Cameras
• Plain view • Decreased workplace theft
– Don’t play favorites • Improved safety record
– Show safety violations • Savings on worker’s compensation claims
– Don’t bother those
doing everything right E-mail Policies
• Hidden 83% prohibit sexual/inappropriate e-
– Uncover worker’s mail
compensation fraud 67% define disciplinary actions for
– Catch employee use of disregard of policy
drugs or alcohol Worthless without controls to
monitor and screen
incoming/outgoing e-mails
 Employee Surveillance
Statistics
• 35% companies monitor • Lawsuit-proof Monitoring
employees System
– Americans subject to • Be clear upfront about
workplace surveillance use/misuse of company
• 8 million in 1991 property
• 30 million in 1999 – E-mail
• 89% concerned about – Telephones
invasion of privacy – Lockers
• Thousands sue for • Reserve right to inspect and
invasion of privacy monitor
– Outcomes unpredictable • Avoid hidden surveillance
• No overriding federal cameras
workplace privacy laws
 Reasons for monitoring
• "There are three main reasons employers
monitor employees:
• legal liability issues,
• employee productivity and
• security breaches," says Nancy Flynn,
executive director of the ePolicy Institute.
• "For example, e-mail creates a written
business record, and employers are
becoming increasingly aware that e-mail and
Internet activity is the electronic equivalent
of DNA evidence. If a company is sued or
investigated by a regulatory agency, you can
take it to the bank that e-mail will be
investigated and subpoenaed."
 REASONS TO MONITOR IN
•
DETAIL
Failure to monitor employees can result in substantial
exposure from within the company or by parties outside;
• Active monitoring by management can avoid disclosure of
company trade secrets and defamation of the corporation;
• Maintaining an effective monitoring system will discourage
dissemination of internal electronic communications that
could be used against the company in the event of
litigation; and
• Employee productivity and even retention can be
maintained through an effective policy and monitoring
system
 Survey report
• According to a 2004 ePolicy survey, instant messaging is
one of the least-monitored computer activities -- only 6
percent of employers surveyed at that time retained or
archived instant messages, while 58 percent of
employees surveyed use instant messaging for personal
online conversations. "Most instant messaging takes
place via free software tools that employees download
and thus is outside employer firewalls," says Flynn. "We
tell employers that if your employees are doing this,
you are handing information over to outsiders."
 Productivity loss
• The average U.S. employee spends approximately six hours a
week searching the Internet for personal reasons while at work.
 At sixty-two percent of U.S. employers, employees surf for
sexually explicit materials.  The two most frequent search
keywords on the Internet are “sex” and “pornography/porno.”
 Seventy percent of all Internet porn traffic occurs during working
hours. During working hours, nine percent of employees earning
less than $35,000 surf the net for a new job while eleven percent
of those making between $75,000 and $100,000 search. It has
recently been estimated that the cost to employers from this lack
of productivity is $5.3 billion.
Productivity Loss
 Employer Responsibility
• Employers are constantly challenged not to
violate any of the aforementioned areas of
privacy rights in the workplace. Employers are
facing increasing legal hot water for the
employee misuse of company –owned computer
systems. While protecting its customers,
investors and workers, employers have to make
certain the use of its systems do not cause
damage
 What should an Employer to Do?
• It is critical to have your HR and IT work carefully and closely with your
legal department to formulate a monitoring policy and implementation
program.
• The scope and level of employee monitoring will depend on the type of
business involved.
•  Health and finance related employers may need a higher level of review
whereas a parts distributor a lesser one.
• The plan, once carefully crafted with input from IT, HR, management and
legal counsel, should communicate all important policy changes be sure
that they are communicated clearly and in writing and acknowledged as
having been read and understood 
 Steps taken by the employer
• Employer should communicate the following points:
 Disclosure to employees upon hiring and periodically thereafter that all e-mail, voice
mail, Internet access and computer files are employer property and as such are subject
to monitoring;
 Notification to employees that the technology they are provided by the company is
company property and is to be used only for business purposes;
 An explanation to employees that despite the fact that they are given passwords to
access your system, they should not have any expectation that the system or anything
placed on the system is “private”;
 Notification to employees what material, in hard copy or in electronic format, they will
not be allowed to transport in or out of the employer's premises or system.
 Confidential material, trade secrets and protected intellectual property should not be
disseminated out of the company without safeguards approved by the employer and as
allowed by the software used to monitor employee use of technology;
 Steps taken by
employers 2
 Notification to employees what material, in hard copy or in electronic format, they
will not be allowed to transport in or out of the employer's premises or system.
 Confidential material, trade secrets and protected intellectual property should not
be disseminated out of the company without safeguards approved by the
employer and as allowed by the software used to monitor employee use of
technology;
 Having an agreed upon electronic “document” destruction policy.  Federal and
state laws require various types of information to be kept for various periods of
time.  Make sure that all electronic files are stored and backed up in such a way as
to prevent “permanent” deletion;
 Reiteration that your non-harassment and non-discriminatory practice policies
apply to company e-mail to prohibit offensive and potentially discriminatory
behavior.  It is difficult to describe in detail everything that should not be put in e-
mail;
 Steps taken by employers 3
 Use the mother test or the jury trial test.  Have employees asked themselves
how they would feel if they had to show their e-mail to their mothers or
explain them to a jury in federal court.  Such tests often have the salutary
effect hoped for;
 Notification to employees what the penalties for violation of the policy are or
could be. This should include reprimand, demotion and termination; and
 Be sure you get something in writing from your employee to acknowledge
receipt of the written policy when issued and if updated.
ONE RESULT OF MONITORING

• Employee Invasion of Privacy Claims have

Decreased 30% in the past ten years
Thank you