In today’s workplace, high tech or not, nearly every move a worker makes while on the job is subject to some kind of snooping. E-mail and web access at work, coupled with tougher sexual harassment and liability laws, have given rise to a corporate appetite for unblinking surveillance technologies. Even covert videotaping is taking place in some workspaces, including restrooms. Is it legal? Yes, but experts favoring employer and employee alike say that doesn’t make it prudent.
MINIATURE CAMERAS and off-the-shelf Internet snooping software, driven by artificial intelligence, make it easy for employers of all sizes to pry into the workplace activities and gobble up suspect e-mail.
And the use of such workplace monitoring techniques is on the increase. Nearly 75 percent of all American companies now use some form of surveillance to spy on employees, according to a recent report by the American Management Association, doubling the number of firms that admitted to such activities in 1997.
But such practices are hardly new. Milton Hershey, the milk chocolate magnate, is known for having skulked around the company town of Hershey, Pennsylvania, taking notes on whether his employees kept their lawns cut. And he hired private investigators to find out who was tossing trash into Hershey Park, the company’s theme park. Henry Ford created a “sociological department” staffed with 150 people to keep track of employee hygiene habits. And a decade ago, the Office of Technology Assessment, a now defunct federal agency, issued a report saying that workplace monitoring is “nothing new.”
A WEB OF INTRIGUE
In today’s fast paced workplace, employees are getting into the office earlier and leaving later. Taking a call from the school about your kids or making a doctor’s appointment means you have to do so on company time. Such situations put workers in a jam.
“The employer has to understand that workers must be able to call the doctor and make an appointment,” said Laura Hartman, Grainger Chair of Business Ethics at the University of Wisconsin in a speech earlier this year. “Workers need to be able to conduct involuntary personal matters at the office.”
The situation creates a legitimate hurdle for employers, too. Last year Forrester Research estimated that 17 percent of online holiday shoppers did so while at work.
“If you couple the 55 million online consumers expected this holiday season with the fact that 42 million Americans have Internet access at work, it’s not hard to imagine a good number of those Net connected employees will be doing some holiday shopping on company time,” said Kevin Blakeman, president of U.S. Operations for SurfControl, a company that makes Internet snooping software for employers.
Blakeman’s company encourages employers to set up an “acceptable use policy” that allows them to shop during the workday, either at lunch or after hours.
“Balance is the key,” says Scott Rechtschaffen, vice president of training for Employment Law Learning Technologies. “As a lawyer I advise employers to create a policy that reasonably protects the employer’s needs and the employee’s needs,” he says. “And such a policy is imminently doable.”
There are certain employers that take the position that “we are going to be very restrictive,” Rechtschaffen said. Most, he said, “take a balanced approached that will allow reasonable personal use, but that reasonable personal use cannot interfere with an employee’s productivity, quality or quantity of work and your duty to the company.”
WHOSE RIGHTS?
Businesses are at risk if they don’t develop some kind of policy for monitoring electronic communications, says Tom Patterson, managing director for E-commerce transactions at KPMG Consulting. “If you don’t do it and an employee goes out and writes hate mail or something with your company name at the end of that, I think it could definitely be argued that the company didn’t do its job in monitoring what was going on,” he says.
However, Patterson adds, “we’re probably several years away from a specific federal law that would mandate that monitoring happen. I think now you’re in the gray area which no company likes to be in.”
And in that gray area, perhaps companies are overcompensating, monitoring more than they should to protect themselves.
“Because employers cannot be sure in advance what sort of e-mail or Web browsing a particular employee might find offensive, they have an incentive to monitor far more Internet activity than the law actually forbids,” law professor Jeffrey Rosen wrote in The New York Times this year.
There also is a kind of unintended collateral damage that happens when workers are scrutinized at every keystroke.
At “precisely the moment many citizens are afraid to use e-mail because of concerns about privacy,” such monitoring is likely to increase the anxiety of workers, Rosen told a Congressional panel during testimony on the FBI’s own e-mail snooping program, Carnivore.
“Several surveys of the health effects of monitoring in the workplace have suggested that electronically monitored workers experience higher levels of depression, tension and anxiety, and lower levels of productivity, than those who are not monitored,” Rosen told Congress. “It makes intuitive sense that people behave differently when they fear that their conversations may be monitored.”
NO SURPRISES
There is not even a dispute that employers have the right to monitor in the workplace. Even when an employer makes a promise not to snoop on e-mail the courts, in Symth v. Pillsbury, have upheld the company’s right to break that promise with no advance warning.
Several high profile examples of workers being fired for abusing e-mail or Internet policies made news recently, bolstering the point that such policies aren’t merely wasting space in some dusty employee manual. Last year Xerox fired 40 workers for “inappropriate use” of the Internet during company time. Earlier this year the New York Times company axed some 23 employees for abusing the company’s warnings about sending potentially offensive e-mail using the company’s computers. And in November the Central Intelligence Agency cracked down on employees that had run a covert chat room inside the company’s own secure network for some 15 years.
If all that sounds like it makes for a dicey workplace atmosphere, you’re right.
“The general rule of thumb is that as long as you tell your employees what you’re doing then it’s okay to monitor,” said KMPG’s Patterson. “The backlash is against the employers that don’t reveal that up front but later decide to monitor.”
Rechtschaffen says that’s why it’s important that the employer “think very well and issue a well-drafted policy that tells employees exactly what the restrictions are, what their rights are, what’s permitted and what’s not permitted.”
Some freewheeling dot coms are feeling the pinch of having to implement monitoring policies, for legal reasons, Patterson said. Employees that thought they were signing on for a free, unrestricted workplace, are being told their online time and e-mail can and will be monitored, Patterson said. And in a down-turned market, with stock options underwater at a growing number of dot coms, “a change in monitoring policy makes it just that much easier for employees to head for the door,” he said.
It’s up to employers to set out clear standards and expectations, Rechtschaffen said. “The problem that really arises here is that with many other kinds of work place conduct, the norms and expectations have evolved over generations,” he said. “People know, for example, that you just don’t leave in the middle of a shift to walk across the street and go to the Safeway and do your grocery shopping,” he said. “However, e-mail, Internet access has happened so quickly that people don’t know yet what the norms and expectations are.”
The bottom line, Rechtschaffen said: “Don’t just put an e-mail out there saying, ‘here’s our new policy, live with it!’ you have to explain it to people.”
