Legal and Ethical Aspects of Electronic Monitoring and Surveillance of Employees”

mANAGEMENT 350: hUMAN RESOURCE mANAGEMENT| â€Å"Legal and Ethical Aspects of Electronic Monitoring and Surveillance of Employees†| | By: Chakana Moore, Patricia Davis, Eric Luken, Michelle Dailey, Jeffrey Webb| | 11/21/2011 Electronic Monitoring and Surveillance Human Resource Management Research Project November 21, 2011 Legal and Ethical Aspects of Electronic Monitoring and Surveillance of Employees Introduction Workplace monitoring has been a point of discussion within businesses as Human Resource Management feels that there is a need to watch their employees and how they conduct themselves at all times during the work day. Unless a government employee, employees are subject to any monitoring the employer deems necessary. Monitoring of e-mail and voicemail, as well as personal searches is within the rights of employers. Conducting video surveillance and tracking internet use are also rights of employers. There are legal as well as ethical aspects of employee monitoring which will be discussed in this paper. Specifically, we’ll expound on two specific organization examples that illustrate the growth of workplace monitoring. Next, issues and challenges of employee monitoring will be discussed. Lastly, sound recommendations based on our research will be given because it affects the people within the organization. It’s vital for workers to understand why monitoring is important and managers to respect and understand that employees have rights as well. Company/Organizational Examples Many companies utilize monitoring and surveillance. They have to learn to balance employer and employee rights. Businesses have the right to ensure that the employees are performing their jobs properly in a secure environment. On the other side, employees feel they should be protected at work and away from work. Since technology allows for employees to take large sums of valuable company secrets or data with them, workplace monitoring has increased. Common workplace monitoring includes e-mail and voice mail, internet use, and surveillance at work. Workplace monitoring has grown because of several forces. First force was the expansion in available technology, ranging from the internet to global tracking devices, which enhanced video capabilities and improved information systems software. Another force mentioned in our textbook is the terrorist attacks of September 11, 2001, which led to the passing of USA Patriot Act. Robert L. Mathis, John H. Jackson 502) This Act allowed government investigators to engage in broader monitoring of individuals, including workplace, in order to protect national security. One concern raised in the workplace is the privacy rights of employees. Employees can feel they are being threatened because of the monitoring. â€Å"Right to privacy† is an individualà ¢â‚¬â„¢s freedom from unauthorized and unreasonable intrusion into personal affairs. However, constitutional rights to privacy are generally inferred through the U. S. Constitution’s Fourth Amendment’s rights which usually apply only to state actions. (Kopp) In an employment context, state actions are fairly narrowed to protecting federal, state, and municipal employees; private-sector employees must look elsewhere for protection. A possible source for such protection from employer snooping includes federal legislation and state common law tort actions such as invasion of privacy. The primary piece of federal legislation suggesting employee privacy interest is Electronic Communications Privacy Act (ECPA). McCubbins) There are three exceptions under the ECPA. The first one is the â€Å"provider exception† which says if the employer is providing the telephone, e-mail, or internet services to the employee being monitored, there is little doubt that the employer is protected from employee privacy claims. A second exception is the â€Å"ordinary course of business. † Under this exception, the employee can monitor employee com munications to ensure legitimate business objectives as assuring quality control, preventing sexual harassment, and preventing use of excessive telephone or email usage. Last exception is the â€Å"consent†. â€Å"Consent† exception applies to even when the sender of the intercepted communication has been assured that all email communications would remain confidential and privileged. In Smyth v The Pillsbury Company, Smyth sent emails to his supervisor that contained unprofessional comments from his home computer. Because his supervisor gave consent to the company to intercept the emails and the emails were later retrieved by the courts, Smyth was terminated and was not able to be protected under the consent exception. A second commonplace monitoring method used by employers is internet tracking. Internet tracking can be used to visit non-work websites like Facebook and Yahoo accounts. Statistics show over 90% of employees admits to visiting other websites doing work hours. About 76% of firms monitor internet use. This can help companies prevent employees from going to inappropriate sites which could possibly create legal issues. For instance, a New Jersey case contained a log that showed one employee accessing porn websites. This activity caused an employee to be arrested due to repeatedly logging on that site when told by his supervisor to stop. Also, this type of activity draws attention to companies and causes law enforcement to get involved and companies can be charged with aiding and abetting legal behavior if found with evidence. A third form of employee monitoring is the use of video surveillance at work. Video surveillance can create a lot of issues in the workplace. Businesses use them on retail floors and in production areas, parts and inventory rooms, and lobbies. According to the annual survey, Workplace Monitoring and Surveillance Survey 2001 conducted by the American Management Association, more than three-quarters of all major U. S. firms are recording and/or reviewing the e-mail messages and telephone calls. Also, surveillance can be used to monitor software in the workplace. One surveillance capability of software monitoring can include workplace software that runs on monitored computers is hidden and difficult for an employee to find or the software could be present and monitoring their every keystrokes. Monitoring software cannot be terminated without the network administrator’s permission. Major issues/challenges Video surveillance is a great way for managers to ensure that their employees are behaving ethically. All managers want to make sure that their company’s time and money are being spent in the right way. Video surveillance will show what is going on within the company, but with the installation of video cameras some problems are likely to arise. Some of the top problems we found will be discussed over the next three paragraphs. The first problem that may arise is deception. This occurs when the company installs video camera for the first time and they don’t inform the employees. If the employer lies about the locations of the camera, this can be considered a form of deception and can open up the possibility for a lawsuit to take place. The employer must be completely honest with their workers in order for the camera to be of good use. With the evolution of technology there are different ways to ensure the company’s time is being used the right way and with doing that, employers must tell the employees that they will be videotaped while at work. There have been lawsuits surrounding uninformed employees and the courts have ruled in favor of the employee. Violation of confidentiality occurs when the company distributes information of an employee. This can happen in different ways such as the company giving out information to someone who doesn’t have the right to have it; for example, distributing video tapes of employees in a theft apprehend interview or job interview. With the installation of video surveillance there will be varying reactions. Only authorized management staff should watch the tapes and not distribute the tapes to unauthorized users. The biggest problem that companies can face from installation of video surveillance is invasion of privacy. This can happen when businesses install video surveillance in employee bathrooms or any other inappropriate place an employee will dwell. It’s reasonable that companies want to do what they can to prevent employees from stealing from the company whether that is merchandise or time. It’s also reasonable that companies want to prevent any conflict that can arise during work. Through the installation of video surveillance, problems can be prevented due to the video surveillance serving as evidence of any unethical behavior. Recommendation/Implementation Based on our research, it is highly recommended that organizations have a structured surveillance and electronic monitoring system within the workplace. Having an accurate system in place will most likely have a positive impact on the people that work within the organization. Also, it will protect the company from unmerited/unwanted lawsuits. Surveillance systems within the workplace show that employers are taking the initiative to make their employees feel safe. Employers utilize surveillance systems to ensure employee security by placing them externally within the outside parameter of the business including parking lots, street corners, garages, and poorly lit areas. Internal cameras can help decrease workplace violence and theft within the company. If employees know they are being watched, they are less likely to cause confrontations or to steal because of the threat of being caught on tape. One negative impact that internal cameras can have on employees is it may affect employee morale because it can make employees feel like they are not trusted and that they are always being watched. However, organizations have to be careful not to violate employee privacy laws by placing video surveillance within restrooms, changing rooms, or private areas. From a legal standpoint, advances in electronic technology and telecommunication have created additional problems for human resource managers through the use of emails, internet, voice mail, and instant messaging. Monitoring all employees’ electronic usage is critical in order for the company to protect itself from lawsuits and from potentially damaging the company’s image. Having a structured system in place will significantly help a company be proactive instead of reactive in their disciplinary steps to correct or eliminate the abuse of their internal electronic systems. The employer should have scanners that are equipped with scanners that will screen for inappropriate pictures or wording and a firewall that will block inappropriate internet websites that the company does not approve of. If an employee is flagged by this scanning system, hey should be disciplined immediately according to company policy and human resource professionals should thoroughly document the incident to prevent lawsuits or in the event a lawsuit is filed they are well prepared to prove that the company was justified in their disciplinary actions they took. The correct strategic approach to electronic mo nitoring and surveillance is to have an in depth employee handbook which is an essential tool for communicating information regarding the workplace policies and disciplinary actions. The handbook should be a downward communication that flows from the top management to the rest of the organization. However, the organization should create a company culture were employees also feel comfortable with upward communication that enable managers to learn about employee concerns because several of the employee handbook violations are reported by lower level employees. Within the employee handbook, employers should have a video surveillance policy informing employees about their surveillance system, informing them that the surveillance system is only performed for legitimate business purposes, and that they strictly limit those who view the surveillance videos. Also, there should be an electronic communications policy that employees are required to sign a permission form that states, they will comply with the policy. This policy should clearly outline that electronic use is provided by the employer for business use only; the use of media for personal use is restricted and is subject to employer review; all passwords must be available to the employer; and the employer reserves the right to monitor or search any media without notice. Organizations must ensure that they are balancing employer and employee rights by using electronic monitor and surveillance systems for business purposes only. Conclusion Surveillance of employees in the work place comes down to investments and the right to be involved in almost all aspects of that investment. Involvement in one’s interest is a good thing but if used excessively, any good things can be harmful. 90 percent of works admit to the use of their computer for non-work related issues, this is an impressive stat that any intelligent business owner would not ignore. Ignoring this stat turns your back on the quality and quantity of work you are paying your employees for, not including legal issues that can be devastating to your company. Internet surveillance seems to be a much need necessity for large companies were as video surveillance is needed for almost every company. Video surveillance is only the epitome of technology and ethical monitoring. Now business has the means of protecting tangible, non-tangible, and human investments at all times. This act starts by insuring employees that they are protected and procedures are in place to keep them working along an ethical passage. This is why it is important to inform those in the work of surveillance, it discourages unwanted behavior, this does not only protean to employees but to outsiders as well. How many times have you see signs of surveillance? Some says â€Å"Smile, you are being watched,† this very smart thing to do in this day in age. Everyone would love to watch every moment of their child’s development but no one has the time and resources to do so. What if you could? What if this was your job? Sure you would try to do so with the best of your abilities, but at the same time, you would have to give them private time. So, there is a clear line between protection and Violation of Confidentiality and Invasion of Privacy Working for any company is a privilege not a right, but it is a right for privileged peopled to be protected ethically. Works Cited Kopp, k. Electronic Communications in the Workplace: E-mail Monitoring and the Right of Privacy, 8 Seaton Hall Const. L. J. 861. 1998. McCubbins, G. Daryl and Jeretta Nord/Tipton F. â€Å"E-Monitoring in the Wokplace: Prviacy, legislation, and surveillance software. † COMMUNICATIONS OF THE ACM. Vols. 49, No 8. August 2006. Robert L. Mathis, John H. Jackson. Human Resource Managemnet, Twelfth Edtion. Mason: South-Western Cengage Learning, 2008, 2006.