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Lex 500

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Electronic Surveillance of Employees
Dawn Cuffie
Professor M. Best
Law, Ethics and Corporate Goverance-LEG 500
January 22, 2012

1. Explain where an employee can reasonable expect to have privacy in the workplace.
Employees are deemed not to have “a reasonable expectation of privacy”. Employees are expected to follow guidelines and regulations regarding usage of workplace computers, telephones, cell phones, pagers, email and internet. These are often times found in the employee handbook and manuals managed by HR. In the private sector, privacy law is determined by the variety of state and federal statutes and the common law of torts (Halbert and Ingulli, pg. 74). Employees may file a claim based on “intrusion” of privacy but must prove that the electronic surveillance was highly obnoxiousness and intrusive and that the reasons for retrieval was irrelevant to the employee’s job. Government employees may argue that electronic surveillance and monitoring violate their Fourth Amendment right to “reasonable expectations of privacy”. These cases are often time judged by the balance test which weighs the importance of the employee’s privacy against the employer’s interest. An example of this is correctional facilities performing body and bag checks on their employees before they enter the facility. The safety of the inmates and the employees at the correctional facilities is of more importance than that of an individual’s need for privacy.
Social media such as Face book has begun to play a role in the business world also. Many employees assume that their pages on these sites are their private business. Employers are adding clauses to personnel manuals that limit what employees can post on these sites. Some of these limitations include slander of the company and their employees, comments regarding customers/clients of the company and trade secrets.
Areas such as bathrooms and locker rooms are protected under privacy laws with the reasoning being obvious. These are the only locations in a workplace that electronic surveillance is not allowed. Employees must realize that big brother is always watching and there really is very little that they can do about it. 2. In the office workplace there are typically two types of workspaces, an open area in which there are several desks and where conversations can be overheard, or an enclosed office, in which when the door is closed conversations cannot be heard and where one would expect virtually total privacy. Explain whether it makes a difference if an employee is in an open area or in an enclosed office.
Electronic surveillance regulations and rules apply in open areas or an enclosed office. Employers are able to monitor employees the same in both environments. Eavesdropping laws only provide protection 3. Explain if Herman’s need to know whether his salespersons are honest is a sufficient ground for utilizing electronic surveillance.
Although I don’t agree with Mr. Herman’s electronic surveillance of his employees, his tactics are completely legal. The federal wiretap law makes it illegal to intercept, disclose or access messages without the individual’s knowledge or consent but employers are often exempt from the law (Halbert and Ingulli, pg. 74). Employers are not required to obtain consent because they notify employees that their communications are subject to monitoring and they are not private. Employers are also able to listen to any communications that occur during the normal course of business hours. Halbert and Ingulli explain this as issues that affect the efficiency or legal liability of the business. Mr. Herman’s reasoning for the eavesdropping was that he was concerned with employee’s honesty because he wanted to change the public’s negative view of car salesmen. 4. Explain to what extent an employer can engage in electronic surveillance of employees.
Employers use many different ways to monitor employees. Computer surveillance, telephone monitoring and video surveillance are always ways to monitor employees.
Telephone monitoring includes the monitoring of incoming and outgoing calls and voicemail. Telephone monitoring is done to monitor employee’s personal phone calls but also customer service and quality. Laws require that the third party individuals are made aware that their calls are being monitored. Employers are also able to obtain a list of calls made from your phone. Under federal law, employers may not record your personal phone calls. Once it is realized that this is a private call, the monitoring device has to be turned off.
Computer monitoring involves internet usage, email, and keystrokes keyed and idle time spent away from computer. Work computers and their software are owned by the company. This allows the company total access to monitor all activities on their systems. Employers do not have to notify employers that they are being monitored. Most companies do notify their employees through personnel documents. On my current position, I was notified that my emails and internet usage were monitored and I was required to sign my acknowledgement of this policy.
Emails sent from your work related computer are also subject to monitoring. This includes your personal accounts with Gmail, Yahoo and Hotmail. Face book pages, Twitter accounts and MySpace accounts are also monitored by employers.
Employees must exercise caution and wisdom when engaging in personal activities on their employer’s time and equipment. 5. Explain to what extent the inclusion of innocent, unaware third-parties in such surveillance determine whether it is legal.
Under federal law, third party individuals have a right to be notified when they are being monitored through electronic surveillance such as telephone and computer monitoring. Companies have a recording that plays at the beginning of conversation and there is a disclosure listed at the end of emails. Exception to this would be the eavesdropping law exemptions. When third party individuals are not made aware of monitoring, then companies are subject to legal action taken against them.

Halbert, Terry and Ingulli, Elaine. Law and Ethics in the Business Enviroment,Cengage Learning, 2010 Employee Privacy Gains in the United States, retrieved January 19, 2012.

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