Electronic Communications Privacy
Privacy is everybody’s right. As it is justified for an individual to keep his/her personal information and activities private from others, in the same manner, every organization has the right to protect its confidential information and secrets from falling into hands of other companies. When people come to work in a company, their activities do not remain limited to them. They become part and parcel of the organization they work for and the law gives the provision to their employer to keep an eye on them. Recent technological advances have been instrumental in setting a significant growth trend in the United
States, concerning employee monitoring. Employers now use monitoring devi...
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...ces to keep track of their employees’ actions for the purpose of increasing their productivity while decreasing their liability. In doing so, many employees feel that such monitoring is an invasion of their personal rights and violates their “privacy expectation”. Consequently, this dilemma has created a necessity for finding a method to balance an employers’ legitimate interest in monitoring employees conduct and performance with an employees’ right to privacy. This can be done by establishing a monitoring policy which enforces
both employer and employee privacy rights. This section of the Employees Handbook has been designed to examine major issues of workplace privacy and formulate a balanced monitoring policy.
II. WORKPLACE PRIVACY RIGHTS ISSUES
Privacy is considered a core value by most Americans. There are many concerns about invasions of privacy from an employee perspective which include: • Unfair information collection and handling practices by the employers in relation to employees’ sensitive data like medical record.
3 • Unlimited surveillance of activities of employees, at the level of keystroke-rate, application usage, traffic and content analysis (internet, email etc). • Unfair dealings by employers – some say they are not monitoring, when in fact they do. • Intrusion into privacy of an individual, such as substance-abuse testing, polygraph tests etc. • Intrusion into privacy of personal behavior, such as audio surveillance, video surveillance, telephone number and conversation monitoring etc.
III. COMPANY’S STANCE ON PRIVACY PROTECTION
Every company is always at risk of having trade secrets compromised, intellectual property stolen, and business plans revealed in an untimely manner. A company has to address all these issues. Workplace privacy and security issues and concerns, from the company’s perspective can be summarized as following: • Developing and reviewing balanced policies relating to data security, internet access, email and voice mail security and privacy. • Making efforts in limiting liability by monitoring employees and the workplace using audio, video and computer technologies. • Formulating comprehensive policy in handling privacy issues relating to employee medical and job performance information, including drug and psychological tests. • Protecting trade secrets and other forms of intellectual property.
• Designing and implementing personnel record retention policies. • Handling security issues that arise during the termination of an employee. • Notifying employees in advance of the privacy protection policy. 4 • Monitoring of employees only during normal business hours, primarily to protect the employees from feeling that their personal life is being invaded. IV. IMPLEMENTATION PROCEDURE Major steps which will be taken by the Company to ensure workplace privacy and security are listed below: • Search and Seizures. Company has the right to and may inspect personal belongings such as bags, purses, briefcases, cars, lockers, desks, etc.
• Monitoring Electronic Means of Communication. Company has significant rights to monitor all means of communication like internet, fax, data on computers etc. • Monitoring Telephone Calls. All telephone calls can be monitored and recorded. • Surveillance and Investigation. Various surveillance methods like cameras, ID check points may be utilized by the company. • Drug Testing. Company can resort to drug testing of employees at the time of recruitment and thereafter as well. V. BENEFITS OF PRIVACY PROTECTION A. Benefits for Company. Two of the many reasons for organizations to be
concerned about privacy are the potential for litigation and the possible damage to company reputations for ignoring or blundering on a privacy issue. Through monitoring the activities of employees, major benefits which the company will achieve are: • Maintaining the company’s professional reputation and image. • Maintaining employee productivity. • Preventing sexual or illegal workplace harassment.
• Preventing possible defamation liability. • Preventing employee disclosure of trade secrets and other confidential information. • Avoiding copyright and other intellectual property infringement from employee illegally downloading software. B. Benefits for Employees. Keeping a balance between employees’ privacy and the need to monitor their activities for the above stated reasons can help induce sense of protection and well being. Keeping the employees informed of the complete process not only facilitates in motivating the employees but also results in more time being spent on fruitful activities thereby increasing the productivity. If the employees are made to understand the purpose of monitoring, they act more responsibly and remain aware of the circumstances they can face if they violate company policies.
The Electronic Communications Privacy Act of 1986 (ECPA) governs unauthorized access to and disclosure of electronic messages. An exception to this rule is to allow employers to monitor email communications during the ordinary course of business or anytime with the employees’ consent. The Gramm-Leach-Bliley Act signed into U. S. law on November 12, 1999 by President Clinton is designed to modernize financial services laws, implement customer protections and privacy policies. In 2001, two federal privacy laws came into effect requiring virtually all businesses to protect the financial and
medical information of employees and customers. In presence of all these laws and others 6 related to this aspect, there is a need to take utmost care in order to avoid any litigation. In pursuance of this aim, the company will follow the following policy guidelines: • All possible measures will be taken to ensure that the personal information of the employees is for the intended use only and will be protected at all costs. • Employees will be informed as to why information about them is collected. Any communication of such information to third party must be in knowledge of employees.
• Employees will be provided with an opportunity to choose (opt out) if and how the personal information they provide is used or disclosed to third parties. • When passing along information that an individual has approved the use of, it must first be determined that the receiving party subscribes to the safe harbor principles. • Individuals who provide information will have access to the personal information about them, and will be able to correct or amend that information where it is inaccurate. VII. SOME ETHICAL CONSIDERATIONS The fact that employee monitoring is legal does not automatically make it right to any
extent. From an ethical point of view, an employee surely does not give up all of his or her privacy when entering the workplace. In order to strike a balance between the necessity of monitoring employees and the ethical aspects, six questions have been kept in mind while formulating this policy, which are listed below: • For what purpose is the undocumented personal knowledge sought? • Is this purpose a legitimate and important one? 7 • Is the knowledge sought through invasion of privacy relevant to its justifying purpose? • Is invasion of privacy the only or the least offensive means of obtaining the knowledge?
• What procedural restraints have been placed on the privacy-invading techniques? • How will the personal knowledge be protected once it has been acquired? The workplace is generally not a private place. In the seclusion of one’s home there is a well-established and legally protected expectation of privacy from other persons. An employer’s facilities are predominantly public in nature because they are not directly owned by the employee. A company therefore has the rights to keep an eye on the employees not only for the sake of company’s interest but also for protecting employees from falling into unwarranted situations.