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The Right to Electronic Privacy of Employees

Introduction

E-business or business through the Internet has gained widespread uptake among local and multinational firms in order to tap into the huge virtual market. To develop effective e-business competencies, firms train employees to use the Internet, establish networking systems, and provide personnel with Internet access for conducting business through emails, chatting, and other web utilities.

Although e-business has benefited many firms, this has given rise to the ethical issue of the right to electronic privacy, which lacks legal clarification but constitutes an exercisable right. Employees and employers have divergent perspectives on the matter. On one hand, employers tap into the emails and web activities of employees as part of their supervisory right to ensure that employees use company facilities in line with business.

On the other hand, employees claim the incursion into their emails and online dealings as a violation of their right to privacy. This issue is not new but while it remains unsettled, many business firms have shunned away from the development of the appropriate solution to this ethical problem, which is perhaps because of the complexity of the issue and/or lack of sufficient legislative guidance. The following discussion reconsiders the two sides of the issue and draws a viable

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solution that could work for both employers and employees.

Employer’s Right of Supervision and Right to Property

Employers perceive the right to privacy as non-absolute, which means there are exceptions. One exception is control or supervision of the business. The employer-employee relationship makes the employer the principal and employees as agents. As such, the agents represent the interest of and conduct business for the principal. Since the agent acts in the interest of the principal, the principal becomes liable for the actions of the agent done in the course of business.

As such, business firms necessarily have to exercise control or supervision over their employees. (Petrovic-Lazarevic & Sohal, 2004) While employees also accede to the control and supervisory role of employers, the issue arose in the case of electronic communications, particularly emails, which employees perceive to be private (Cappel, 1995) so that the incursion of employers on emails violates employees’ right to privacy.

Employers recognize the right of employees to privacy. However, another justification for looking into the emails of employees is the exercise of property rights by the employer. This constitutes the other exception to the right to electronic privacy of employees. Employers own the computer facilities and pay for the Internet connection and networking system utilized by employees so that the company holds the proprietary right to ensure the appropriate use of its facilities in support of its business during working hours.

The concerns of employers find substantiation in statistics showing that half of the people using the Internet on a given day do so at work (Rifkin, 1991). It is in the furtherance of the property interest that employers check on their employees’ emails. Many companies have also justified the checking of emails after finding out illicit employee activities ranging from the use of Internet facilities to run a personal business or leak out trade secrets (Tavakolian, 1995).

Employees Right to Electronic Privacy

The gist of employees’ right to electronic privacy is the protection of personal matters in the workplace on the assumption that personal matters have no bearing on work and the interests of the employer (Petrovic-Lazarevic & Sohal, 2004). Although, this is an existing right, there are limitations and application is often problematic.

One limitation of this right is the need to prove the personal nature of information, objects, or circumstances (Podesta & Sher, 1990) so that in practice, the employer can apply its monitoring power and the assertion of the right to electronic privacy rests on proof that the employer encroached on a private matter. There are no preventive measures when the employer exercises monitoring powers in the workplace but only relief in court upon filing of a case.

Another limitation is the uncertain inclusion of emails and other electronic communications in the exercise of the right to privacy. While lockers assigned to employees for personal use and with permission to use their own locks can be covered by the right to privacy as in the K-Mart v. Trotti (1984), emails and electronic communications appear not to form part of the right as in the Nissan and Epson cases, when employees lost the case in favor of the right of employees to search online records and open the emails of employees (Tavakolian, 1995).

This means the right to electronic privacy is a challenging or difficult right to assert in the workplace when considered relative to the supervisory and proprietary powers of employers. Nevertheless, the business community does not seem to want to forego this right altogether but experience practical difficulties. Incursion of employers into emails and electronic communications is allowable when the employer has given notice and with the consent of the employee (Rifkin, 1991).

Encroachment is also possible on matters that employees do not expect to be private. However, even with these clarifications, the exercise of the right to electronic privacy in the workplace remains problematic or even non-existent with employers neglecting to recognize the right in work policies and employees feeling deprived of the right.

Ramifications on the Local and Global Business Community

Although, the lack of sufficient legislations to clarify the right to electronic privacy and guide its exercise constitutes a legal issue, this has ethical ramifications for the local and global business community. Local business firms experience the impact of the issue of electronic privacy to a lesser extent than multinational firms do but there are similar impacts.

First similarity is the impact on employee relations. Since there is a difference in opinion between the extent of the right to electronic privacy in the workplace between employers and employees, this would cause a gap or rift in employment relations. As employers exercise supervisory powers in the workplace through surveillance of online activities and collation of employee emails, employees perceive the violation of their right to electronic privacy.

Even if emails also apply to business, employees consider a personal email and personal messages as private, albeit many cases such as Bourke v. Nissan Motor Corp (1993), Shoars v. Epson America, Inc.(1994), and Smith v. The Pillsbury Company (1996) upheld the supervisory right of employers over the emails of employees in the workplace.

As an ethical issue, employers do have the power to exercise supervisory powers in the workplace. However, the perception of invasion of electronic privacy of employees is mostly due to the hostile environment of its exercise. Employers practice their supervisory powers in a manner that repels employees and creates a hostile environment.

Many employers inform employees about the monitoring of emails but in a manner that antagonizes employees, placing them on the defensive side. Monitoring could be integrated as part of the business culture of accountability and performance assessment instead of a pseudo police investigation into the affairs of employees. In this way, perhaps the antagonism experienced by employees would wane to give way to the development of means of practicing supervision in a manner that does not give rise to violations of electronic privacy from the perspective of employees.

Although incursion into the emails of employees is possible by obtaining consent, many companies have not established guidelines or policies in practicing supervision of electronic activities of employees including the scope, the limitations, the purpose, the process, and the expectations from both parties on the matter. Lack of policies translates to lack of information for managers exercising supervision and employees subject to supervision. This leads to conflict because of differences in expectations.

Second similar impact on the local and global business community is incurring the cost of litigation. Due to lack of policies on the supervisory role and the clarification of the scope of the right to electronic privacy, most companies finding irregularities in the email of employees such as offensive messages to co-workers, running of personal business, and sharing of company secrets to third persons that could be grounds for termination are not used as such.

Companies terminate employees for other grounds such as poor performance, resulting to the filing of cases for wrongful termination by employees. Insufficient legal guidance mostly contributes to this since lack of clarity on the matter results to uncertainties in the exercise of the right by employees and the manner of handling this right by employers.

The global business community also experiences another challenge relative to the issue on the right to electronic privacy. Multinational companies operate in different jurisdictions with varying perspectives on this right. Some jurisdictions do not recognize the right at all, while other jurisdictions recognize the right but allow varying modes of exercise. This lead to policy conflicts between headquarters and subsidiaries adversely affecting the cohesiveness of the company. As such, the issue also requires statutory clarification on an international level to develop standards of practice that would clarify the right and the obligations and responsibilities of employees and employers.

Conclusion

Electronic privacy is a legal issue because it is a right exacting obligations from employers and employees. However, lack of local and international standards on the matter have implications on effective policymaking on the matter by the domestic and global business community. The solution is effective policymaking by business firms with laws providing guidance to clarify the issue for the parties. Statutory development on the matter is required at the domestic and international level to provide sufficient guidance for the local and international global business community.

References

Secondary Sources

Cappel, J. J. (1995). A study of individuals’ ethical beliefs and perceptions of electronic mail privacy. Journal of Business Ethics, 14(1), 819-827.

Petrovic-Lazarevic, S., & Sohal, A. (2004). Nature of e-business ethical dilemmas. Information Management & Computer Security, 12(2), 167-177.

Podesta, J., & Sher. M. (1990). Protecting electronic messaging: A guide to the Electronic          Communications Privacy Act of 1986. Arlington, VA.: Electronic Mail Association.

Rifkin, G. (1991, December 8). Do employees have a right to electronic privacy?. The New York Times. Retrieved October 5, 2008, from http://query.nytimes.com/gst/fullpage.html?res=9D0CE6D6143AF93BA35751C1A967958260&sec=&spon=&pagewanted=2

Tavakolian, H. (1995). Electronic mail: An issue of privacy versus property rights. Management Research News, 18(8,9), 40-50.

Cases

Bourke v. Nissan Motor Corp. (1993) No. B068705 (Cal. Ct. of Appeal July 26, 1993)

K-Mart v. Trotti (1984) 677 S.W.2d 632

Shoars v. Epson America, Inc. (1994) No. B073234 (Cal. Court of App., 2nd Dist., April 14, 1994)

Smith v. The Pillsbury Company (1996) No. 95-5712 (E.D. Pa. 1996)

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