Employee Monitoring, Its Legal and Ethical Issues

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Table of Contents

Introduction
Background
Legal Issues
Impact on the Workplace
Conclusion
References
Footnotes

Introduction

The increased development and use of technology in the workplace has led to the widespread practice of employee monitoring. Through the use of information technology, employers can monitor the activities of the employee that is utilizing company-owned online accounts, software, and electronic devices. In the growing concern for digital privacy, numerous legal and ethical issues are discussed. Employee monitoring is necessary to ensure the proper use of company technology in the workplace, but the extent of the supervisory control and violation of privacy should be legally limited.

Background

Computer monitoring exists when the software is used to remotely access and view the computer monitor and hard drive files of the employee workstation. The program allows visualizing everything that the employee sees in real-time. In addition, data can be collected regarding Internet traffic, application usage, keystroke speed, and relevant patterns. Some programs track time spent away from or idly at the workstation. Supervisors can record or remotely access the employees computer and have the ability to shut it down. Email systems that are owned by the employer can be easily accessed. It is assumed that any workplace correspondence is monitored and saved to specific servers.

Telephone monitoring is a common method of quality control in businesses. Any business-related call or conversations from the workplace are subject to oversight and recording.¹ Mobile devices, particularly the ones issued by the employer, are constantly monitored and tracked. This includes phone logs, messages, browser history, files, and even location data.² Finally, monitoring can occur through video and audio surveillance.

Many workplaces, especially ones that allow public access, have cameras for video recording. Audio recordings are protected by eavesdropping laws, so conversations cannot be recorded without notification, similar to telephone conversations. Neither method of employee monitoring is allowed in private places such as the bathroom or locker room (Privacy Rights Clearinghouse, 2017).

Information technology and software are used to monitor and analyze employee behavior based on digital footprints. Electronic records can track various mediums, activities, and patterns of communication. This can be utilized for purposes of evaluating performance and enforcing discipline. Lost productivity is a primary concern for employers as workers use paid time to engage in external activity online. Millions of dollars in annual loss are a direct result of lost productivity to non-work-related activities on digital devices.

In addition, the content accessed by employees may be inappropriate or illegal. The monitoring occurs in order to counteract negligence, assess employees, and protect the employers equipment and the workplace.³ Also, the existence of digital records provides security in case of breaches, malfunctions, or litigation (Yerby, 2013).

Legal Issues

There are some legal challenges to employee monitoring with various situations having been disputed in major court cases. A notable reason for electronic surveillance and record-keeping by employers is to have evidence in the event of legal action due to the employees actions, accessed material, or the possibility of criminal behaviors. However, it is recognized that monitoring can be excessive and abusive.

Therefore, many state laws now require employee notification before the monitoring activity. In addition, union and company policies have been changed to address the issue to some extent. Laws have become outdated with the exponential development of technology. A wide variety of workplaces and used devices further complicate legislation. One of the most cited laws in employee monitoring cases is the Fourth Amendment, preventing unlawful searches and seizures.

It has been effectively applied to digital resources. However, it is recognized that private-sector employees lack any right to privacy within reasonable bounds. Government employees can only be monitored and searched if there is a reasonable cause. California is the only state that effectively protects private-sector employees. It is difficult to make an all-encompassing legal judgment as most situations regarding employee monitoring are looked at on a case-by-case basis, with courts most often siding with the employer.

Although there is no legislation requiring employers to monitor digital activity, judges recommend they do so to protect themselves. Otherwise, the employer may be held liable if a case is brought to court. Generally, the law maintains that employee monitoring is legal, but the ethical impact on the organization is debatable (Yerby, 2013).

Impact on the Workplace

There are both positive and negative impacts of employee monitoring in the workplace. It is a reliable method of maintaining discipline and productivity. If the counter-productive activity is not prevented, businesses will not maintain their fiscal and production obligations. With 60% of employees admitting to using the Internet for non-work-related activity, organizations lost $5.3 billion in 1999 (Moussa, 2015). Employees begin to focus and avoid inappropriate activity with the knowledge or expectation of being monitored. Further, those engaged in illegal acts such as hacking, corporate espionage, and theft are now aware that detailed records exist that could easily implicate any criminal. It is important to note that supervisors and managers may also find themselves in a situation where inappropriate use of technology leads to disciplinary action.

Monitoring is noted to have adverse effects. Most often, it causes a high-stress environment, which in the long-run, impacts employee commitment and the quality of work. Employee satisfaction significantly decreases with increased pressures. Overall, the culture of the workplace is affected, especially if it encourages communication. Furthermore, monitoring begins to damage the relationship between the employees and employer as workers feel the uncomfortable sensation of authoritarian leadership that the Western ideology teaches to reject.

There is a fundamental violation of trust and privacy that is tremendously bad for the workplace. While the need for employee monitoring is recognized, the most successful compromises involved employees in establishing policies about the extent and notification of any audits or tracking (Moussa, 2015).

Conclusion

As technology is becoming an integral part of many occupations, the methods for employee monitoring are becoming more complex. It will always be a controversial topic of debate regarding workers rights and ethical standards. At this point, this method of auditing employees is considered legal if it does not cross certain boundaries. It is important to establish legislation and landmark court decisions that can be a compass for the future development of employee monitoring policies.

References

Privacy Rights Clearinghouse. (2017). Workplace privacy and employee monitoring. Web.

Mousssa, M. (2015). Monitoring employee behavior through the use of technology and issues of employee privacy in America. SAGE Open, 5(2), 1-13. Web.

Yerby, J. (2013). Legal and ethical issues of employee monitoring. Online Journal of Applied Knowledge Management, 1(2), 44-55. Web.

Footnotes

Many state laws require an identifying signal or prerecorded message to be played to notify the parties that the call may be monitored or recorded. Also, personal calls are protected by privacy laws.
Based on legal cases, private communication, such as text messages, is not protected by the 4^th amendment when it is on a work mobile phone. Nor do the employer policies have to specify every aspect that is being monitored.
Hostile material and email harassment are possible instigators to workplace conflict.

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