When You Clock In, You Surrender Some Rights at the Door
Imagine crossing a border each day into a world where officials can search your belongings, monitor your phone conversations, read your personal e-mail, secretly videotape your actions, subject you to physical and psychological testing--and you are powerless to stop them.
If that sounds like China or one of the former Eastern Bloc countries, think again. That border is the workplace door here in the United States. And those officials are employers, who routinely encroach on the privacy of workers in ways that police or the government wouldn’t dare attempt without a search warrant.
Your boss doesn’t want you to know it, but every day, you forfeit some privacy for the opportunity to earn a paycheck. Courts have determined time and again that El Jefe has the right to spy on you at work as long as there is business justification for doing so. In most cases, your only recourse, if you don’t like it, is to quit.
“There’s almost nothing an employer can’t do, and there’s not much employers aren’t doing,” said Lewis Maltby, director of the American Civil Liberties Union’s national task force on civil liberties in the workplace. “You may live in America. But it’s not the same America when you go to work.”
Technological progress has only hastened the trend. Experts estimate that at least 26 million Americans are electronically monitored every workday. All the gee-whiz technology that has made American workers poster children for productivity can also function as an electronic tether. In this digital age, your boss may know how fast you type, what Web sites you visit, with whom you’re exchanging electronic messages and more.
Fully two-thirds of big companies surveyed recently by the American Management Assn. said they engage in a host of surveillance techniques to track employee performance, productivity, wrongdoing or potential liability on the job. Those actions include listening to employees’ phone calls and voicemail, reading their e-mail, rifling through their computer files and videotaping their activities. About 15% of those firms don’t tell employees what they’re doing. In many cases, they don’t have to.
The U.S. Constitution protects citizens from unreasonable searches and seizures and other invasive activities by government. Private-sector companies aren’t bound by the same restrictions.
What workers do have on their side is a handful of narrow federal statutes putting limits on things such as employers’ use of lie detector tests and their ability to monitor workers’ personal phones calls. (They’re supposed to hang up if you’re talking to your mom, for instance, but it’s legal for them to sift through your voicemail or eavesdrop on your business calls for quality control purposes.)
States have a hodgepodge of laws on their books governing privacy in the workplace. Michigan, for example, limits employers’ ability to videotape workers on the job. Other states have put the right to privacy in their state constitutions. But even in California, where that constitutional right has been interpreted to include private-sector employees, workers hardly enjoy blanket protection from nosy employers.
In general, experts say, private-sector workers here and nationwide must rely on their common-law right to privacy to challenge their bosses’ prying. That’s a legal balancing act in which, on a case-by-case basis, courts weigh a worker’s expectation of privacy against the employer’s motive and the intrusiveness of the action.
The results?
“The employers are winning,” said Craig Cornish, a Colorado Springs, Colo.-based attorney and privacy expert who said courts have given bosses wide latitude to snoop on their workers as long as they have a legitimate business reason for doing so. That could include searching employees’ desks, computers, even their personal belongings under certain circumstances. And a boss’ promise of privacy? Don’t count on it.
Consider the 1996 case of a Pillsbury salesman fired for calling his bosses “back-stabbing bastards” in an e-mail that made its way into a superior’s hands. The worker argued in his lawsuit that the company had assured workers that their e-mail would be confidential. The company disputed that, but promise or no promise, a federal judge let the firing stand.
While devices such as e-mail, video and tracking badges have given employers new tools to keep tabs on the work force, their instinct to pry is an old one. Some 19th-century factory owners set curfews and required church attendance for their employees. Managers dating to the Industrial Revolution have used stopwatches and other mechanisms to track worker performance. Auto maker Henry Ford employed gumshoes to report on his workers’ home lives.
Still, experts argue that workers’ privacy has eroded markedly during the last two decades. Employees who once might reasonably have expected to be able to glance at the sports section between calls, or even take a lunch hour peek at that racy magazine in their briefcase, are courting trouble if they use their company’s Internet to do the same thing.
Federal limits on the use of lie detector tests haven’t prevented employers from getting inside workers’ heads with personality tests. Video cameras have popped up even in workplace bathrooms as companies test the boundaries of privacy law in the name of crime and drug prevention. But the biggest setback came with court rulings in the 1980s, allowing employers to test prospective hires as well as some active employees for illegal drug use, according to Cliff Palefsky, a San Francisco employment lawyer and privacy advocate.
“Taking bodily fluids is the most intrusive search you can subject a human being to,” Palefsky said. “Once you sanction that, you’re basically saying that all less-intrusive searches are OK.”
Such fears are overblown, said Lawrence Fineran, spokesman for the Washington-based National Assn. of Manufacturers. Employers have indeed increased their use of monitoring to combat theft, sloth and potential lawsuits, and a few zealots have clearly overstepped their limits, he admits. But he said the specter of bosses stalking workers every moment of the workday just isn’t credible.
“Most employers go to great lengths not to abuse their right to know what employees are doing every minute on the job,” Fineran said. “It’s bad for morale. Besides, who has the time?”
So where are the champions of workplace privacy on Capitol Hill? Mostly retired or sitting on their hands, according to Maltby, who said the chances of any federal action to offer more protection to workers won’t happen any time soon.
A handful of measures are shuffling through state legislatures, including a bill proposed by Sen. Debra Bowen (D-Redondo Beach) that would prohibit California employers from secretly monitoring workers’ e-mail and personal computer files.
In the meantime, privacy experts such as Beth Givens, director of the Privacy Rights Clearinghouse, a nonprofit consumer information and privacy program based in San Diego, offer workers the following tips:
* Assume your employer can read your e-mail, even after it’s deleted. Ditto for your voicemail.
* Be cautious about recreational use of the company computer. Internet surfing leaves a wake for the boss to follow. A personal file is an oxymoron if it’s stored on a company-owned machine.
* Don’t assume that your personal phone calls are private. Employers aren’t supposed to be listening, but that doesn’t mean they aren’t. Use a pay phone for really sensitive conversations.
* Watch your back because chances are it’s being watched for you.
“It saddens me that we seem to have accepted that we can be ubiquitously monitored in the workplace,” Givens said. “But until the laws change, employees have got to know that they have precious little privacy in the workplace.”
