With management rights of the employers. Despite posing both

With increased
technology development, employee monitoring has become a controversial topic
over the past few decades. Traditional employee action and management changed
during this time. Misuse of company property, decreased productivity, and
workplace violence are the main reasons for monitoring employees. Additionally,
the rising need and use of technology fostered the need of monitoring daily
activities and heightened the pressure between the employee privacy and
management rights of the employers. Despite posing both legal and ethical
issues, employee monitoring functions to protect both employees and employers.

Workplace
surveillance can involve different forms of monitoring. Some businesses may opt
to simply monitor phone calls and e-mail. While other businesses opt for video
surveillance of company property, including the employees working on site.
Whatever the form, employee monitoring gives rise to many issues and some
employees simply do not agree with the process. It is important for both
employers and employees alike to understand the negative and positive effects
of employee monitoring. Understanding these effects can lead to more employee support
and possibly generate an employer’s deeper concern for employee privacy.

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Legal and Ethical Implications

Electronic
monitoring poses several legal and ethical issues in the workplace. “Electronic
monitoring has deep ethical implications with respect to workplace outcomes
such as employee perceptions of privacy rights, fairness judgments, quality of
work-life, and stress-related illness.” (Alder, Schminke, Noel, Kuenzi, 2008,
p. 481). Most of the ethical implications of employee monitoring fall under an
employee’s idea of morality. An employee may feel that it is unethical to
invade their privacy, even though that employee is using company property. “A common reaction to the suggestion that employers may
monitor such internal (to the firm) communications is that this is an
abridgement of the constitutional right to free speech guaranteed by the first
amendment.” (Hodson, Englander, & Englander, 1999, para 5).

When approached with the idea of
electronic monitoring, employees are often taken aback by the idea. They often
believe that it is against their legal rights, as citizens, for their
communications to be monitored. Although, employers claim that monitoring not
only improves productivity but is a legal necessity that assists in keeping the
company from becoming legally liable for employees’ misuse of technology (Holt,
Lang, & Sutton, 2017). However, the practice of employee surveillance can
be problematic because excessive and unreasonable monitoring can invade an
employee’s reasonable expectation of privacy, lower morale, cause employees to
complain and potentially quit, and cause employees to fear using equipment even
for benign work purposes (Ciocchetti, 2011). In an effort to combat these
issues, it is important that businesses adopt proper policies regarding
employee surveillance.

Utilitarianism Theory

   
        Utilitarianism encompasses a
business’s ethical approach to monitoring its employees. By means of the
Utilitarianism method, actions are considered ethical when they promote the greater
good for a greater amount of people (Seaquist, 2012). In many cases, a business
is looking out for the welfare of the company and the well-being of its
employees. In an effort to protect all parties, or larger parties, employee
monitoring would be an ethical business practice. Chang, Liu, and Lin (2015)
conducted research which found that businesses practicing employee surveillance
used the information to improve their performance with their employees and
design more effective environments. Therefore, their use of employee monitoring
actually benefited the company as a whole.

            Employers
using a utilitarian approach to employee monitoring could determine whether
personal use of the company computer system is appropriate or acceptable, then consider
the degree to which company monitoring of personal use or employee productivity
is acceptable. Does a bit of personal use of company computers produce the
greatest good for the greatest number of people? Minimal personal use of
company computers could allow an employee a moment of relaxation and reflection
before returning to their daily tasks. This could have several advantages and
benefits for the employee and those around them. For example, an employee may find
that after taking that moment, he/she has better focus and attention on a work
task. As a result, the employee is able to complete their task ahead of
schedule and they are able to move on to other tasks. Consequently, their
productivity has improved, which improves productivity for the company.

On the other hand,
would a policy limiting company computers to strictly business use better
correspond with utilitarian principles? If work time is exclusively for work,
it could be easier to justify a work-related usage only policy for company
computers. This almost seems like a common-sense type of situation. Most people
agree that an individual goes to the workplace to work. Personal affairs and
matters should be handled on personal time not company time. For instance, it
could be assumed that an employee that devotes their eight-hour day at work to
completing work-related tasks would be more productive than an employee that
devotes roughly five hours to work-related tasks and the remaining hours to
personal matters. However, some may say that one person could get more work
done in a six-hour day than another in an eight-hour day. Whatever the
circumstances, a company must determine how their policy will provide the
greatest good for the greatest number of people.

Ethical Relativism Theory

The focus of
surveillance would be narrowed regarding circumstances with ethical relativism.
Ethical relativism is the concept that moral absolutes do not exist or there
are no moral rights and wrongs. Instead, the idea of right and wrong is based
on social norms. Ethical relativism embraces the idea that morals have evolved
and changed over time, and therefore are not absolute. The theory of ethical
relativism centers on the circumstances surrounding a certain situation, rather
than the common good (Seaquist, 2012). Businesses may use an ethical relativism
approach to monitor select employees based on a specific incident or situation.
For instance, employers may suspect workplace violence or bullying, which could
encourage them to look closer and one or more individuals.

Ethical relativism
would assume a business already has a surveillance policy in place but chooses
to look at specific employees following recent interactions. For example,
complaints or concerns have surfaced regarding one employee’s interactions with
others. One employee claims this employee is sending threatening e-mails or
messages. Another employee claims this employee is making derogatory comments
both in private and public situations. This would give employers reason to look
further into the daily activities of the employee in question. Furthermore,
this would give employers reasonable grounds to bring disciplinary action upon
this employee.

Law

Understanding constitutional
rights, employment law, and tort law can improve both employee and employer
understanding of the legality of employee surveillance. Under employment law, employees do not generally
have privacy when concerning their work emails and phone calls. Phone calls and
emails received and sent using company property can be viewed as company
property as well. The Electronic Communications Privacy Act, for example, grants
employers some immunity when it comes to how they choose to monitor their
employees. On the other hand, tort law can be used to combat privacy issues in
the workplace, assuming an employee has the grounds to fight the action.

Electronic Communications Privacy Act

The Electronic Communications
Privacy Act contains an “ordinary course of business” exception that gives an
employer the right to access an employee’s e-mail if the messages are
maintained on a system provided by the employer (Friedman & Reed, 2007). Employers
must create effective electronic communications policies, and there are many
considerations employers must take into account when drafting such policies. A
few of these considerations per Ella and Lewis (2016) are as follows:

1)    Company
equipment is designed for business use only. This includes computers and
electronic systems.

2)    Employees
should not have any expectations of privacy when regarding the use of company
email,

3)    Employees
must abide by confidentiality policies and non-disclosure agreements.  

4)    Employees are barred from
making discriminatory or disparaging comments when discussing the employer, the
employee’s superiors or co-workers, and/or competitors.

5)    Employees may not use or
download unlicensed software.

6)    The company reserves the
right to take disciplinary action against an employee, if the employee’s
electronic interactions breach company policy.

Unfortunately,
employers that fail to implement policies or act inconsistently with their
policies may find that employees still have a reasonable expectation of
privacy. For example, implementing a policy that states “communications on the
company e-mail systems are not private or secure” but then allowing certain
employees to use the e-mail system for personal matters and barring anyone but those
select individuals from accessing a company computer or e-mail system may cause
an employee(s) to expect privacy despite the policy.

Employment Law

Employment
law encompasses all rights and obligations within the employer-employee
relationship. This includes relationships with current employees, applicants,
and former employees. As employees, we all have basic rights in our place of work
including the right to privacy, fair compensation, and freedom from
discrimination. Even prior to being hired on as an employee, applicants also
have rights. Those rights include the right to be free from discrimination
based on age, gender, race, national origin, or religion during the hiring
process. For instance, a potential employer cannot ask an applicant certain religion-related
or age-related questions during the hiring process.

In
many states, employees have a right to privacy in the workplace. This right to
privacy applies to the employee’s personal possessions, including purses or
briefcases, storage lockers that can only be accessed by the employee, and
private mail addressed only to the employee. Employees may also have a right to
privacy in their personal telephone conversations or voicemail messages.
However, these rights become limited when regarding their e-mail messages and
Internet usage while using the company’s computer system.

Tort Law

Privacy
claims do not always arise from legislation. There is also the
possibility that the body of common law, or tort law, can provide
protection if one party’s actions result in damages to another, even when
a formal contract or relationship is absent. Tort law can be used as the basis
for privacy claims in four ways (Prosser, 1960). One basis, unreasonable intrusion
upon seclusion of another, is possibly the most relevant to the workplace and
e-mail monitoring. An actionable claim based on intrusion upon seclusion must meet
two conditions: (a) the employee must have a reasonable expectation of privacy,
and (b) the intrusion must be considered highly offensive to a reasonable
person (Smith & Tabak, 2009). A reasonable expectation of privacy is most likely
to occur when the actions of the employer suggest that such privacy is a
condition of work.

Under
Section 652B (1977), intrusion upon seclusion is defined as “One 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.” (para. 1). An example of this could be if an employer
investigated an employee’s private concerns by monitoring his/her private and
personal mail or e-mail. This type of intrusion would make the employer subject
to liability.

As
Seaquist (2012) discusses, under intrusion into seclusion, there can be no
reasonable expectation of privacy for people who carry out their private
business in plain view. For example, if an employee is conducting personal
business on company time and on company property, they cannot have any
reasonable expectation of privacy. Therefore, they would have no basis for a
privacy claim. However, as discussed above, an employee could have basis for
their claim, if the employer had previously allowed the employee to conduct
personal business on company property.  

Benefits of Employee Monitoring

While there can be many perceived drawbacks
to employee monitoring, there are also many benefits. For instance, in some
cases, monitoring can be that slight push to improve productivity. If employees
are aware that they are being monitored, it is possible that they will become more
productive and more efficient in their work. This may lead to some employees
focusing more on their tasks and minimize mistakes. However, this will not be
the outcome for all employees. It is possible for some employees to become less
productive due to monitoring. They feel as if the employer does not trust them
enough to complete their tasks without being watched. Therefore, this fact can
be evaluated on a case-to-case basis.

Secondly, employers may be able to recognize
employees’ positive attributes, as well as who is working and who is simply coasting
by each day. Additionally, instead of only seeing negative interactions or
situations, surveillance also provides a closer look at positive interactions
and situations. It can be said (and often is) that the more informed an
employer is, the better choices he/she can make when it comes to hiring personnel
and consequently, the better the organization can run (Palm, 2009). Occasional
monitoring of employee day-to-day tasks, an employer should be able to identify
those employees who remain focused on their duties throughout the day. This
increases the likelihood for employers to show appreciation for the employees
that complete their work instead of simply show up to collect a paycheck. With
increased acknowledgment and appreciation, employee morale will rise,
productivity will improve, and tensions would be minimized.

Lastly, monitoring can also draw attention
to other problems in the workplace, including faults of the company. This
allows businesses to identify those problems and work on approaches or methods
to fix them. For instance, if an employer is monitoring an individual employee,
they may find that the employee is falling behind due to lack of guidance or
support. This will let them know that they need to provide more direction or
assistance for the employee. In turn, their efforts to support this employee
could see an improvement in his/her daily tasks and attitude. These are simply
a few of the benefits of employee monitoring, and with proper implementation
and follow-through, a company can see improvements with both their employees
and the business overall.

Conclusion

Although legal and ethical issues present
themselves in employee monitoring, electronic monitoring of employees has shown
to benefit and protect all parties. Businesses find they and their assets or
resources are protected through employee monitoring. Additionally, this allows
employers to gain a better understanding of how well their employees work, both
alone and with others. Employees are protected from harassment situations and
wrongful accusations. Employees can receive recognition and possible
advancement as a result of findings through surveillance.

Employment law and the Electronic
Communications Privacy Act grant exceptions for businesses choosing to monitor
their employees. However, in the event an employee feels that their privacy was
unreasonably invaded, they do reserve the right to make a privacy claim. No
matter the circumstances, employers and employees both have recourse to protect
themselves within the organization. It is crucial that employees and employers
alike understand the importance of proper workplace surveillance because it can
create a safer and more stable environment for everyone.