Monitoring Employee Activity

There have been several posts on this blog concerning an employer’s right to monitor an employee’s activity. (Here, here, here, here, here, here, here, here, here, here, and here.) This can include reviewing how an employee uses her computer at work; placing cameras throughout the workplace to monitor employee activity; searching an employee and an employee’s property at work to enforce drug, weapons, and other policies; listening to employee telephone conversations at work; and placing GPS monitoring devices on vehicles used by employees.

Time Magazine recently reported on a case decided by the Ninth Circuit Court of Appeals, upholding the government’s right to sneak onto an individual’s property, put a GPS device on the bottom of a car, and monitor everywhere an individual goes. This is part of the government’s effort to catch drug dealers and other criminals. Time says we’ve finally entered George Orwell’s vision of 1984.

Only an exhibitionist wouldn’t be concerned about the recent erosion of individual privacy, both inside and outside the workplace. Technological advances have diminished one’s privacy in ways unimaginable a few years ago. But the alarm expressed by Time about this recent case is a bit overblown.

The question in a privacy case is whether the individual had a reasonable expectation of privacy concerning whatever was searched or monitored. Though the case reviewed by Time isn’t an employment case, it has implications for privacy cases in the employment arena. If an employer has written policies clearly telling employees what is subject to monitoring or search, there’s a very good argument that no reasonable expectation of privacy exists.

Take a look at your written policies. Make sure they cover everything you intend.  Then take a reasonable approach to the enforcement of those policies so that they are used for business purposes and aren’t used to discover personal information about employees that has nothing to do with an employer’s business.

1. 

   John Chapman says:

   October 8, 2010 at 11:31 pm

   I continue to have big problems wil people who object to law enforcement agencies taking steps to enfore the law. If they have ANY reason to suspect me of illegal activities, they should be able to take steps to find out about it. Even if the steps they take are ILLEGAL, what’s the biggest threat to society – what I do or what they do to catch me? If it turns out that I’m NOT doing anything illegal, what’s the problem? If I am going to get away with doing anything illegal then I need to also do whatever is necessary to prevent getting caught – and this would include more than just parking my car in my driveway. Law enforcement should at least have as much leeway to check on me as I have to do something illegal.
2. 

   John Phillips says:

   October 9, 2010 at 9:51 am

   John,

   Thanks very much for your comment.

   You express one point of view on this subject very well. With the threat of terrorism being a part of lives now, many people share your point of view.

   However, and this is the lawyer in me talking, the Constitution simply won’t allow law enforcement to do whatever it wants to. There are many examples of law enforcement personnel beating confessions out of suspects. There are examples of people spending years in prison when, as it is later proven, they weren’t guilty. Our criminal laws are tilted in a way to prevent that from happening, even though it still does. Some folks have always argued that the criminals have too many rights and that too many constraints are placed on law enforcement. There will always be a tension there.

   If our country ever becomes a place where acts of terrorism occur all the time, it will be interesting to see whether Congress, courts, etc. would adopt a view closer to your view.

   As to the workplace, the question isn’t ordinarily one involving criminal activity but one involving how much privacy employees have at work and how far employers can go to intrude upon that privacy. At present, I’d say that the scales are still leaning toward employers. Generally speaking, employers have a lot of leeway when it comes to investigating employees. It’s more toward the point of view you have expressed, except it involves civil law rather than criminal law.

   Thanks again for your comment. It’s very timely and part of a debate that’s been part of our society for a long time.

   John