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Workplace Privacy

While employees are often the beneficiaries of technological advances (see, for example, telecommuting), technology has also given employers a new frontier in which to invade the privacy of their employees. And as technology progresses, it becomes easier and easier for employers to pry into their employees’ personal lives, making employees’ concerns about privacy all the more important.

Perhaps the most extreme, admittedly exaggerated, example of the dangers that may face workers involves radio frequency identification (RFID) chips. Employers would implant a small chip in their employees. Devices would then scan for the unique identification number emitted by the chip. So far, the use of the chip in people is rare and largely experimental, although the danger to privacy is substantial. As one security expert explained, when RFID chips are used, “You are effectively broadcasting who you are to anyone within range. The level of surveillance possible, not only by the government but by corporations and criminals as well, will be unprecedented. There simply will be no place to hide.”

Through RFID chips may be the scariest-sounding of all privacy invasions, of more concern to today’s employees are employer invasions concerning email and Internet use. The overwhelming majority of employees (87%) surf non-work-related websites at work, with most employees surfing the web daily. Not surprisingly, for employees, the Internet has become the most popular means of obtaining the latest news. But the number of companies who engage in workplace surveillance—approximately 90%—is just as high as the number of personal-web-surfing employees. According to a survey by the American Management Association, approximately 75% of companies monitor web use. More than half of companies retain and review emails. An amazing 36% track content, keystrokes, and time spent at the keyboard.

Companies often argue that these invasions are justified because the employee is on the company’s watch and should be performing work tasks. Nearly a third of companies have fired an employee for violating email policy. Yet, there is evidence that shows that employees may actually spend more of their personal time doing work (5.9 hours per week) than at work doing personal stuff (3.7 hours per week), thus resulting in a net gain for employers.

While an administrative law judge in New York City recently ruled that using the Internet for personal reasons was tantamount to reading a newspaper or making a personal telephone call at work, other courts have not been as sympathetic to worker concerns. The Ninth Circuit Court of Appeals, in a recent opinion, noted that “employees are not entitled to privacy in the use of workplace computers, which belong to their employers and pose significant dangers in terms of diminished productivity and even employer liability.”

One emerging concern has been the increase in the numbers of workers fired or penalized for postings on their personal blogs. If an employee is fired for a blog posting, that employee is said to be “dooced” (after one employee was fired after writing about work on her personal blog, Dooce.com). In September of last year, a former Delta Airlines flight attendant sued the airline for sexual discrimination after being fired for posting provocative pictures of herself in uniform on a personal blog. In February, a reporter in Dover, Delaware was fired for offensive postings on a personal blog. In March, Lexington, Kentucky police officers faced administrative charges after postings made on their private blogs that discussed disabled persons and sexual orientation.

The ACLU has questioned the legality of these firings and the related situation in which schools penalize students for postings on private blogs. As one ACLU attorney said, “Just because the Internet is easy to access doesn't turn what was intended to be private speech into a public affair.”

Even blogs that are unavailable to the general public, such as employee blogs located on a company intranet, have come under fire. In July, a contractor for the CIA fired one of its employees after the employee posted her views on torture and the Geneva Convention on an intranet blog.

While approximately 80% of companies have an email policy, only 8% of companies have a written policy on what is acceptable to post in a personal blog. While one study has pegged the number of HR professionals who read job candidates’ blogs at 7%, one commentator has estimated that number to be much larger. Yet, as the number of workers' blogs and MySpace pages continues to rise, employers may be pressed to establish a clear policy on the matter, especially given the anecdotal evidence above.

Aside from the Internet, there are other ways that tech-savvy employers engage in employer surveillance. Approximately 20% tape employee phone calls; more than 50% use video monitors. In addition, a growing number of employers now use GPS technology in trucks and other vehicles to track their employees, and GPS-enabled cell phones present still more privacy concerns.

Technology has made background checks easier for employers. Employers nowadays can use automated, ongoing screening to perform perpetual background checks on employees. For as little as $1 or $2 per employee, employers can subscribe to a service that reveals any prior indiscretions by employees.