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Employee Privacy and Discipline

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Employee Privacy and Discipline
Adrian Perez
Alejandro Perez
Gustavo Montemayor
Yesenia Sanchez
Texas A&M International University

In all parts of the world good discipline, in the workplace, results in good conduct. Discipline, in definition, allows for the instruction of employees to act in accordance to the rules of an organization. In the workplace we have always had employers enforce the concept of discipline for one major reason, proper work behavior. However, when it comes to out-of-work discipline, the circumstances become more difficult for employers to manage. The following will focus on the out-of-work behaviors of the employees when illegal and legal actions take place and whether employer discipline applies.

First, we concentrate on the out-of-work illegal behavior. Employees work does not always represent or justify their out-of-work actions or their out-of-work actions do not always represent or justify their work. When concentrating on the illegal actions of an employee, employers must first determine whether the crime committed can or will affect the company, co-workers, and/or customers. If the employee commits a crime in which jail time is granted employers really do not struggle in terminating this employee. If it does not result in jail time the employer must justify that the employee who committed the crime is in fact in a position where his actions portray any potential risk to the company and therefore could be terminated for the employee’s out-of-work behavior. For instance, if an employee is caught for theft at a local corner store and the employee is accountable for inventory at his job; the employer can then relate a potential risk and justify a termination for this specific employee. Over 30 percent of business failures have been attributed to employee theft (Lagan-Fox, J., 2007). An employee can also be terminated if accused of a violent crime; the employer can justify for the safety of the co-workers. If in this case the employer does not impose disciplinary action, any wrong action or behavior committed by this employee would be a risk taken by the employer who is liable and could face potential issues if any workplace violence is displayed by this employee. Second, when employers face out-of-work behaviors by the employee and are yet legal, then it gets difficult for employers to justify strong disciplinary actions, such as suspending or terminating an employee. The reason is because some actions are not a risk for the company and some are. Let us focus on the out-of-work behavior that is legal but threatening to the company, because this tends to be easier for employers to justify. We could use the example of a hairstylist employee, who is still wearing his uniform, and appears on the internet wrongfully cutting another person’s hair. After losing a great sum of clients for this reason, the employer decides to terminate this hairstylist; because of the employee’s out-of-work behavior was affecting the company’s reputation and financials. When employers face out-of-work behaviors that are hard to determine whether it affects the company or not and whether they acknowledge what type of discipline could be used or not; in these situations employers must be extremely cautious, because any disciplinary action could allow for sues to be made by the employee and losses for the company. There is a legal case that examples these types of situations very well. The case is Anna Land V. L’anse Creuse Public School Board of Education (Law, 2010). The case explains about a woman named Anna Land who was terminated from her position as a middle school teacher at her school district after photographs of her engaged in a simulated act of sex with a male mannequin appeared on an internet website. The photographs were taken during a combined bachelor/bachelorette party in the summer of 2005. The photographs were taken without her knowledge and were posted on the internet website without her consent. Rumors about the photographs began circulating at the school in September 2007, and students gained access to the photographs. At her request, the photographs were removed from the website later that month. In the meantime, she was suspended from her teaching position. In October 15, 2007 the school decided to terminate her because of engaging in lewd behavior contrary to the moral values of the educational and school community, which undermined her moral authority and professional responsibilities as a role model for students. Anna under the Administrative Law Judge had sufficient proof to be terminated. Anna challenged this decision under the State Tenure Commission. The commission found Anna’s conduct occurred more than two years before she was suspended, was not illegal, occurred at a public event off school grounds, did not involve any school activity, and was not associated with her duties as a teacher. Further, the context for the conduct was a bachelor/bachelorette party in which there was no reasonable expectation that children were or might be present, or that any adults who witnessed Anna’s activity were not willing participants. In addition, there was no evidence that she had mentioned her conduct or attendance to any student, or that she had advocated the type of conduct in which she was photographed. Accordingly, the commission determined that petitioner did not engage in professional misconduct and that, absent such a showing, any negative publicity arising from petitioner’s conduct did not provide reasonable and just cause for petitioner’s discharge. Accordingly, the commission reversed the ALJ’s decision and ordered Anna’s reinstatement ("Anna land, v.," 2010)(unpublished). From studying this case we understand the complexity of employer’s decisions over out-of-work discipline and the consequences they might carry. Anna’s actions had no relation whatsoever to the school and yet they took the discipline decision of terminating her. Anna’s out-of-work actions did not affect her ability to teach, the student’s ability to learn nor the schools ability to recruit; reason why the decision was appealed in court. Employers must always focus the employees’ out-of-workplace behavior and the connection (if any) it shares with the workplace. Employers, when they discipline or terminate any employee for out-of-workplace misbehavior they must first definitely acknowledge the level of gravity this behavior carries. The employee’s behavior must definitely and clearly portray an effect on the company for proper discipline to be given. It is always good for employers to review any employee contracts and discipline handbooks or manuals before enforcing their disciplinary actions.
Intercompany dating amongst employees and between superiors and subordinates usually brings about complaints of preference or sexual harassment once the relationship ends. According to Repa (2002) “Proximity often breeds attraction.” The advent of technology has increased the amount of time an employee is on the job or conducting work related activities. The time spent with co-workers increases and the line that defines personal and professional has been blurred. Even though companies like Southwest Airlines and AT&T have publicly come out in favor of office coupling (Budak, 2012), most employers restrict workplace romances. Off-duty behavior should be private but more and more companies are placing restrictions on what employees can and cannot do with the excuse of it may negatively impact the image of the company. For most employers the problems come about after the relationship ends especially if it was terminated on less than friendly terms. Some companies have made large investments in hiring and training their employees and don’t want to lose them to a workplace romance gone sour.
In Lawrence v. Texas the U.S. Supreme Court in 2003 determined “if an employee has a constitutionally protected right to engage in private sexual activity, then such a relationship with a coworker would be similarly protected.” This ruling however does not protect against an employer having anti-fraternization policies. In fact, in another case, Tavani v. Levi Strauss & Co. the California Supreme Court in 2002 determined the employee had no reasonable expectation of privacy regarding workplace romance because the employer had informed its employees against intercompany dating. Currently that is the standard for most of the country. An employer cannot limit the extent of a consensual relationship between coworkers but does allow indirect control through anti-fraternization rules. According to Gallo “employers can regulate office dating and enforce anti-fraternization policies that have some reasonably direct relationship to their business goals.”
In the case of Ayers-Jennings v. Fred’s Inc. the U.S. Sixth Circuit Court of Appeals ruled in favor of Fred’s Inc. The company was able to terminate Ayers an employee of 28 years for marrying Jennings a manager within the company. Jennings was not in Ayers direct line of supervision but because of Fred’s Inc. anti-fraternization policy, one of them had to resign or be terminated. Fred’s Inc. showed no loyalty to an employee of 28 years. These actions may reciprocate with the employee’s hurting Fred’s Inc.
Employers should not have the ability to dictate their employee’s personal life off-duty, but they do. If an employee’s actions have some reasonable direct relationship to the employer’s business interest, the employer has legal rights to dictate an employee’s actions. Under the “at-will employment” an employer can terminate an employee for any reason as long as it’s not illegal. Currently cases have favored both the employee and employer.
In the case of Anna Land v. L’Anse Creuse Public School Board of Education the Michigan Court of Appeals ruled in favor of the employee. Anna Land, a teacher, was photographed simulating a sexual act on a mannequin at a bachelorette party. Unknown to Anna Land the photograph was posted on a social media site. Within a month Anna Land found out about the picture and asked to have it removed. Two years later the L’Anse Creuse Public School Board of Education found out about the picture and terminated Anna Land “for engaging in lewd behavior contrary to the moral values of the educational and school community” (Anna Land v. L’Anse Creuse Public School Board of Education, 2010). After a review of the circumstances Anna Land was reinstated because her actions did not have an adverse effect on the students, teachers, or institution.
In the ongoing case of Daniel Ray Carter Jr. a former deputy for Hampton, Virginia who was terminated for “liking” on Facebook the Sheriffs’s political opponent. Mr. Carter was terminated along with five other deputies presumably for the same reason. The Sheriff states the deputies were terminated because of budget cuts. The Federal court ruled in favor of the Sheriff, stating the “like” on Facebook is not a protected First Amendment right (Hudson, 2012). The case is in the appeals process.
Ultimately, the employer has most of the authority to dictate employee behavior and terminate them. With globalization and the advent of technology the workplace is encroaching on employee’s personal time and life. The U.S. courts have yet to draw a definitive line favoring the employer or employee.
The Privacy Act of 1974 “limits collection, use, and disclosure of personal data by agencies of federal government” (Kennedy, 2008). There are some exceptions that allow the use of personal information, these are; for statistical purposes by the U.S. Census Bureau, routine use of a government agency, archival or law enforcement purpose, and for congressional investigations and other administrative purposes. The act also allows the individual who the information pertains to be allowed to view and amend at any time. It does not apply to the records of every individual only those held by an agency.
Many corporations are implementing new technology to help them monitor employees. Technology has dramatically transformed today’s workplace, giving the company the convenience of heavy employee monitoring. Factors & reasons that are encouraging the growth in the monitoring of employees at work will be identified as to the effects of monitoring on employees are considered, along with ways by which employees can protect themselves from undesirable effects.
Employee monitoring is a dependable, capable, and very affordable process of electronically or otherwise recording all employee activities at work and also increasingly outside the workplace. The internet and its associated technologies have accelerated the monitoring process, substantially making them more evasive and intrusive. A report from the Workplace Surveillance Project of the Privacy Foundation, which monitors employee monitoring worldwide, shows that globally 35% of the 100 million online workforce are monitored. Other organizations, like the American Management Associated (AMA), have reported similar figures. According to the AMA, there has been a noted steady increase in employee monitoring. The growth rate of employee monitoring can be attributed to the availability of tools to do it, the case of setting up of these tools, the growing use of Internet access in the workplace, and the growing availability of monitoring software and hardware products. Several factors also include the increasing use of Internet and e-mail and Internet user interfaces, which is enabling the average employer to use the technologies without much difficulty. Employers believing that monitored employees are more productive than unmonitored ones. Also, the tremendous amount of new powerful spying and surveillance software that is all encompassing in what it does in gathering information. Productivity, theft of company property, espionage, and performance review are the reasons for monitoring employees. Many employers monitor employees for productivity. According to Panko (Panko, 2004), in a PC World 2001 study, 60% of the employees surveyed said that they send personal e-mails and surf the Internet while at work. Further, 90% of the respondents said that they spend at least 30 minutes a day surfing the Internet. Although companies are tolerant of moderate Internet use during working hours, excessive use results in poor performance, and hence, reduced productivity. To respond to any excessive Internet activities at work, companies routinely monitor employee e-mails and Internet use. According to McWorld 1993 survey, employers monitor 29.2 for theft of company property. By doing so, the company protects the employee as well. Employers monitor 21.5% for espionage. It is common for employees to deliberately or unconsciously acquire information from or give information to other companies. In a 2001 survey, 40% of the respondents admitted to receiving confidential information about other companies. Information received or given to competitors has the potential to damage a company’s competitive advantage. To prevent this, companies usually prohibit their employees from uploading of downloading information without specific permission. Other reason to monitor employees is to review their performance at work. It’s done at a 9.2% according to McWorld 1993 survey.
As we noted in previous information, the tremendous growth of technology in the workplace has been a mixed bag for both the employer and the employees. As we studied the effects of monitoring on employees we learned how monitoring has let to employee terminations as well as lawsuits by employees claiming privacy. There was a case in July 2011 (Singleton, et al. v. Domino’s Pizza, LLC), where a complaint was filed on behalf of Domino’s employees and prospective employees. The lawsuit alleges that Domino’s routinely obtains and uses consumer reports to conduct background checks on its employees and prospective employees. Domino’s then relies on this information to make important employment decisions, such as whether to hire, fire, or promote employees. The complaint alleges that, if doing so, Domino’s violates the Fair Credit Reporting Act (“FCRA”). To all this a summary of ours rights under the Fair Credit Reporting Act states that the Federal Fair Credit Reporting Act (FCRA) promotes the accuracy, fairness and privacy of information in the files of consumer reporting agencies. The most devastating effect of employee monitoring is fear of losing one’s job. For many of us, a job is the only source of a livelihood, and any sigh of losing it triggers fear (Kizza, 2002). In addition to fear of losing jobs, employee monitoring also causes the following problems: Lack of trust among workers, supervisor, and management, stress, repetitive strain injuries (RSI), lack of individual creativity, reduced or no peer social support, lack of self-esteem, worker alienation, lack of communication, and psychological effects. Employers have a right to see that employees do not misuse facilities provided to them to be productive. Employers also have an obligation to provide a clear and concise Internet user policy to all employees. An enforceable clear user policy can lessen these effects on employees and can reduce the risks to employees and liabilities to the employer.
In this investigation, we have seen the employee monitoring as fair. There are things that employees can do to guard themselves against being routinely monitored. Employees may need to never use company equipment for illegal and unauthorized activities. This is important, due to that if they keep within law, they limit employer power to monitor them. Even though it seems like the employer has a free hand in employee monitoring since technology and sometimes the courts have been more in favor of the employer, things seem to be changing. New technologies have started appearing on the horizon that are claiming to be able to protect a person from surveillance.
Drug testing is the workplace is another form of employer surveillance on employees. Drug usage, on or off the job, can have a range of effects on a worker. The question is what should you do about it? Should you terminate or rehabilitate? What different types of drug use could lead to problems in which won't? What are the consequences of implementing drug testing policies? Is it fair to punish workers by terminating them? These are all questions and employer must take into consideration when implementing its drug testing policies. As an employer, you have a choice to make in regards to employees who test positive in drug tests. The employer could either terminate them or try to rehabilitate them and offer them a second chance. By terminating the employee you save yourself a lot of trouble in having to fix the problem by just hiring a new employee. This approach could be most useful when your recruitment pool is large and there is not much training involved for the job. Implementing this policy however, will affect how employees perceive it; this in turn can also affect their performance. For example, a study done by Truxillo, Donald, James, and Talya found that negative attitudes tend to arise when the company implements a termination policy. These negative attitudes stem from a fear of losing/not getting a job, or unfairness in the workplace. Considering that a large majority of people have at least tried illegal drugs it would not be the best move to automatically terminate any worker who has tried it. (Truxillo, Donald, James, Talya 2001) There are several ways that a business can go about drug testing its employees; among those are the standard on-site drug tests, laboratory, hair, and oral drug testing. The on-site drug tests for example, are quick easy and very cheap to do, however, they cannot stand up in court. These tests can detect drug use going back up to a month. The laboratory drug tests are more expensive and take longer to get the results back but they are needed in order to pursue legal action against another person. These tests are very similar to the on-site drug tests; however, these tests have more credibility, as they are done by non-bias workers performing blind tests. Hair drug tests are expensive as well and can detect drug use going back several months depending on what hair follicle are obtained. The test operates by detecting drug remnants in the hair follicles. There are, of course, limits to this test, it will only be able to detect as far as the longest piece of hair will allow. For example, Hair grows at about 1 cm each month so if you get a buzz cut every week, this test will only be able to determine drug use within a few weeks. Oral drug tests are also very cheap and convenient to perform. An oral drug test is performed by obtaining a sample of saliva and looking for traces of illegal substances. This test is noninvasive and will give results back within minutes. The downside to this test is that it will only detect drug use within a day’s time. So if the worker shot up heroin when the previous day the old tests negative, however, he would test positive in an on-site test. Polygraph tests are another form of monitoring your employees. It has been regarded by the intelligence community is an invaluable way of catching criminals spies and saboteurs. It is also an ethically questionable business practice. According to Stephen Fienberg and Paul Stern (2005) the origin of mistrust of the polygraph dates back to the1923 case of Frye v. United States.” The defense unsuccessfully attempted to introduce… expert testimony as to the innocence of the defendant on the basis of his systolic blood pressure tests.” Frye was accused of murder in the district of Columbia, after first denying any knowledge of the event he then confessed, only to recant his confession afterwards because he had been promised to share with the reward for his own conviction. He was then given a polygraph test and passed it, however, the judge did not miss this piece of evidence and convicted him of murder. To this day Frye v. United States is cited against any polygraph evidence. The only time this evidence would be allowed in court is when both parties agreed to use the lie detector in court. A polygraph works by measuring a person's breathing rate, pulse, blood pressure, and perspiration. It is dependent on trying to catch worries from the person of being caught be detecting abnormalities in any of those four measurements. Polygraphs can also detects things like arm and leg movements. Given this evidence, it would be possible (and fairly simple) to cheat a lie detector if a person knows how. So, should the polygraph be used in private businesses? To employees this could be extremely invasive (physically and mentally), especially if they cannot fool the polygraph. As a result, an ethical problem arises; should an employer invade an employee’s privacy for the reason of drug use?
Dan Davison argues that drug use is an insufficient reason to invade a person’s privacy, using something like a polygraph. “The United States Supreme Court recognized that each individual has a constitutional right to privacy in its opinion in Griswold v. Connecticut.” The most common view meaning for privacy is for the right to be “let alone” and should not be infringed upon by the government without a sufficiently good cause. This definition does not necessarily include private businesses; as a result, employees do not necessarily have those rights to privacy in the private sector (Davison, 1988). Although it may be legal to polygraph test employees, it would not be neither ethical nor efficient because of its limitations.
To better understand how people work, many employers monitor their employee’s activities. Clear factors that are encouraging the growth in the monitoring, and reasons for the growth of technologies have been described in our investigation to better understand why employers use such technologies. The various effects of monitoring on employees were considered, along with ways by which employees can protect themselves from undesirable effects.

Bibliography
Anna Land v. L'Anse Creuse Public School Board of Education, 288612 (State of Michigan Court of Appeals May 27, 2010).
Beach, L. R. (2007). Human Element: Understanding and Managing Employee Behavior. Armonk: M.E. Sharpe.
Budak, J. (2012). Love Among the Cubicles. Canadian Business, 24-28.
Burke, R. J., & Mattis, M. C. (2005). Supprting Women's Career and Advancement: Challenges and Opportunities. Northampton: Edward Elgar.
Gallo, R. E. (2006). The Law on Workplace Romances. California Lawyer.
Hudson Jr., D. L. (2012). Like' is Unliked. ABA Journal, 23-24.
Repa, B. K. (2002). Your Rights in the Workplace. Nolo.
Lagan-Fox, J., Cooper, C. L., & Klimoski, R.J. (2007). Research Companion to the Dysfunctional Workplace : Management Challenges and Symptoms.

Law, W. (2010, October 07).
Legal & small business resource blog badly behaving employees – can employers discipline or fire employees for behavior outside of work?. Retrieved from http://www.worleylawllc.com/blog/badly-behaving-employees-can-employers-discipline-or-fire-employees-for-behavior-outside-of-work.html State of Michigan Court of Appeals, State Tenure Commission. (2010) (Unpublished).
Anna land, v. l’anse creuse public school board of education (No. 288612). Retrieved from State of Michigan Court of Appeals website: http://www.worleylawllc.com/blog/badly-behaving-employees-can-employers-discipline-or-fire-employees-for-behavior-outside-of-work.html

Domino’s Pizza (Fair Credit Reporting Act) http:/www.nka.com/case/domino%E2%80%99s-pizza-fair-credit-reporting-act/
Kizza, J.M. (2002). Ethical and social issues in the information age (second edition, pp.
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Attorneys At Law (2011). Domino’s Pizza (Fair Credit Reporting Act) Singleton, et al. v. Domino’s Pizza, LLC. Retrieved November 22, 2012: http:/www.nka.com/case/domino%E2%80%99s-pizza-fair-credit-reporting-act/
Truxillo, Donald M., James L. Normandy, and Talya N. Bauer (2001) Drug Use History, Drug Test Consequences, and the Perceived Fairness of Organizational Drug Testing Programs. Journal of Business and Psychology. 87-99
Dan Davidson (1988) Employee Testing: An Ethical Perspective Journal of Business Ethics , Vol. 7, No. 3 (Mar., 1988), pp. 211-217
Stephen E. Fienberg and Paul C. Stern (2005) In Search of the Magic Lasso: The Truth about the Polygraph. Statistical Science. 249-260

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