Electronic Surveillance at the Workplace
Electronic Surveillance has been part of Americans framework since the invention of the telephone. Employers utilize a variety of electronic surveillance devices and other means of obtaining information. These devices are computer monitoring, video surveillance, investigators, spying, and eavesdropping/wiretapping as well as other means. Most employers have a valid reason for using one or more surveillance devices to either monitor their employees for business purposes such as for training, quality assurance and customer service and others use it monitor customers and employee integrity from theft and fraud.
Early on in the electronic age legislation was created to protect our civil liberties from being violated and pried upon by the federal government, police, employers and the general public this legislation was known as the Omnibus Crime Control and safe Streets Act and later amended to the Electronic Communications Privacy Act of (ECPA) 1986 which governs third-party interceptions of electronic communications.
The questions that employees have in today’s work place is if they have any expectation of privacy, when and where my conversations can be deemed private, do employers have the right to eavesdrop on conversations while I am in the workplace and to what extent can they go. Today information about hundreds of thousands of things surround us, it hits us from every direction, the television in morning broadcast the daily news, radio personalities during your commute to work was well as conversations from people passing you by on the street or in the supermarket.
While in the workplace were can an employee expect to have privacy within that environment? Employees should expect a limited amount of privacy based on their surroundings. The Supreme Court of California recently held that: “In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, xpectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants’ coworkers”. 1 Therefore an employees should expect a degree of privacy while in the workplace, conversations held outside of the ear-shot of others boundaries have been set for a private conversation.
Altman 1975; Derlega and Chaikin 1977, suggest that two interacting parties will attempt to set boundaries that meet their individual goals as well as their collective interest. 2 In an office setting there are typically two types of workspaces, and open area, in which there are several desks and conversations can be overheard or there are enclosed offices, in which—when the door is closed conversations cannot be heard. State and Federal laws have granted employers a wide latitude of control over the workplace environment as it pertains privacy. Tile 18 of the U. S. Code which encompasses the Electronic Communication Privacy Act (ECPA) states that “it shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous act in violation of the Constitution or laws of the United States or of any State”.
In short, conversations in the workplace place must be of a business nature and one of the parties to the conversation must give consent to have that conversation recorded or monitored. Mark Renfro a Insurance Counselor at GEICO stated “That conversations held in an open area at work would have little to no privacy rights because anyone can hear your conversation, but on the other hand if the situation were to be that the conversations were to be held out of ear-shot of others in a remote location where it is him and someone else or behind closed doors that conversations would be viewed as private”. In the video clip, did the sales manager Herman have sufficient grounds for utilizing electronic surveillance in order to determine if his sales people are honest? As the manager Herman is ultimately responsible for the daily operation of the business and needs to know if his sales team operates with integrity when presenting information to the company’s patrons. Salespeople that state miss information about products could potentially cause businesses money in current or future sale, lawsuits and future customer business.
Thus, he does have sufficient grounds to use electronic surveillance to monitor his sales team’s conversations with customers because they occur during the normal course of business. So now to what extent can employers engage in monitoring its employees? Under Tile 18 of the U. S. Code, guidelines have been established as to what, when, and where electronic surveillance can be conducted. First and foremost it must be a legitimate business purpose. There are typically 4 types of monitoring employers use: telephone; computer; e-mail/voice mail and video monitoring.
All forms of monitoring have stringent requirements employers need to follow: Telephone monitoring is used to monitor business on business phones with clients or customers for quality control reasons and in most states is required to inform that the conversation is recorded or monitored. An import note to this would be that calls that are deemed to be of a personal nature are not allowed to be monitored from any phone not specified as business phones. Computer monitoring is used mostly to monitor employee sites visited on the World Wide Web to ensure unprofessional or unethical site are being viewed within the workplace.
In addition employers want to ensure the safety of its network from viruses and Trojan horses that could infect its system and bring business to a halt. Electronic mail falls under the same guidelines as computer monitoring. E-mail systems uses company computers and have the restrictions. Lastly, video monitoring is used a deterrent to theft and security of the business and its employees. Currently, federal law does not require disclosure to employees. Video monitoring is unlawful to be used in bathrooms, lock rooms and dressing rooms or any public rooms were a reasonable person would consider a private.
Determining whether the inclusion of innocence of unaware third parties has when being monitored and any legal grounds. Unfortunately, Title 18 only requires the consent from one party to be lawful and therefore an unaware third party could not be innocent. Although Cathy Goodwin states “ consumer privacy is violated when information is gathered or used without consumer consent or when a consumer’s private space is violated by unwanted consumer communications”