Privacy in Workplace

Privacy in Workplace

Darrell D. McGaughy

Law 304 Professor Jack B. Hamlin, M.S., J.D.

27 July 2011

Abstract

Abstract

The American Management Association in 1999 ran a survey monitoring

U.S. companies use of electronic monitoring devices in the workplace. Results from survey showed forty-five percent of all companies use some kind of surveillance. Since 1999 there has been an explosion in technology aimed to aid employers with surveillance. The same survey was conducted in 2011 and now seventy-eight percent of all companies use monitoring devices.

Employees have developed great concern over their privacy in the workplace because of evidence that companies are violating their privacy rights, whether by very public or surreptitious means. This research explores issue fronts and controversies that have emerged around the subject, with a view toward explaining aspects of workplace culture and possible directions of development.

For a number of years, organizations of all sizes have intruded on the privacy of would-be employees as a condition of employment. Checking veracity of résumés, "background investigations" that include obtaining employee credit and criminal history, drug testing, lie detector tests, aptitude tests, psychological evaluations, medical exams--all may be conditions of both getting hired and holding a job (Shumaker, 2003).

The explosion of computer technology in the last decade of the 20th century multiplied the capacity of employers to intrude on employee privacy. There are obvious benefits in having a wealth of research and life-management resources available to anyone who can access the Internet. Those who have Internet access at their workplace can also by and large save the cost of a personal investment in a home-computer system if necessary. On the other hand, at a time when much personal information is stored online in data banks used by financial, commercial, and government institutions, the very availability of information puts individual privacy at risk.

The Introduction

The monitoring of employee's email and internet traffic by employers is a serious issue. In court case "Bourke v. Nissan Motor Corp. in U.S.A. The plaintiff Bonita Burke and Rhonda Hall files suit against Nissan Motor group for wrongful termination, invasion of privacy and violation of constitutional right to privacy.

Facts

In June of 1990, Nissan Motor Corp had training session demonstrating the use of E-mail at an Infiniti Dealership was conducted. Co-worker Lori Eaton randomly selected email from Bourke email to another employee working at dealership. Unfortunately, Bourke email was not business related and was personal and of sexual nature. Ms. Eaton reported incident to supervisor who in turn issued review of all email messages for entire work group that was approved by management. Nissan found numerous messages of personal sexual content between Bourke and Hall they both were issued written warning for violating company policy that prohibiting using the company system for personal use. Bourke and Hall both had work performance issues and had been written up several times. On 28 Dec 1990 Bourke and Hall filed grievances with Nissan human resources department claiming Nissan invaded their privacy by retrieving emails. On January 2, 1991, Bourke was given final warning notice, which stated that her performance would be monitored for three months and if she didn't meet performance objectives she would be terminated. Bourke resigned the next day. Hall was terminated 3 January 1991. Nissan moved for a summary judgment on grounds no disputed issue of material fact to warrant trial in this matter. The trial court found in Nissan favor and Bourke and Hall appealed decision. The summary court decision was affirmed in appellant court.

Issue

There's no reasonable to expectation privacy in workplace while using company equipment. Both public- and private-sector employers may have specific policies regulating telecommunications use by individual employees, and employees may be obliged to sign the policies to prove that the policies are understood (Shumaker, 2003). The thing to be understood is that--in all industries--employees can expect no privacy in the content of e-mail messages that they send and receive or Internet sites they visit. The absence of privacy with regard to personal tastes is only one aspect of this, since that same technology enables employers to very closely track the productivity of an employee at his or her workstation.

"Judicial implementations of the Fourth Amendment need constant accommodation to the ever-intensifying technology of surveillance" (Dean Superior [1973] 35 Cal.App.3d 112, 116); "the Fourth Amendment must likewise grow in response" (United States v. Kim [1976] 415 F. Supp. 1252, 1257). This is especially true when it comes to "acquisition technology," that is, devices that, in effect, create vantage points that weren't previously there: audio bugs, wiretaps, and "video bugs", the use of which requires that the police must get warrants or other court orders. Computer based agreements, can eliminate any legitimate expectation of privacy. . For example, in United States v. Simons,[30] the computer-use policy at the Foreign Bureau of Information Services ("FBIS"), a division of the Central Intelligence Agency, expressly noted that FBIS would "audit, inspect, and/or monitor" employees' use of the Internet, "including all file transfers, all websites visited, and all e-mail messages, 'as deemed appropriate.'"[31] The Fourth Circuit held that this policy "placed employees on notice that they could not reasonably expect that their Internet activity would be private" and that, "in light of the Internet policy, Simons lacked a legitimate expectation of privacy" in his use of the Internet at work.[32]

Rule

As stated Under the common law, "'[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.' (Rest. 2d, Torts§ 652B.)"