A man walks into his workplace thinking that it will be another normal day at work. However, his employer calls him into his office and fires him, on the basis that he had written offensive threats in an email towards one of his bosses. The employee now files a wrongful discharge action alleging that the employer?s actions violated his right of privacy. The employee also states that the company had assured its employees that all email would remain confidential. The employer strike back by saying that he should have the right to have interest in preventing inappropriate and unprofessional comments over the email system. The question is who is right in this case. Does the employee have any privacy rights? This answer is found in the 1986 Electronic Communications Privacy Act (ECPA), the only federal legislation that addresses this issue (Stellin 1996). This act states that ?it a federal crime for an individual to intentionally or willfully intercept, access, disclose or use another’s wire, oral, or electronic communication? (Hernandez 1996). However, the definition of Electronic Communication is defined as ?any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce?(Hernandez 1996). This act does not apply to workers in a private business, because email in a private sector does not affect interstate commerce (Dichter 1996). Therefore, if there is no legislation that gives the right to an employee, then judges in each case has to act on a trial by trial basis, to determine whether the employer has the right to intrude into the employee?s privacy. Although the Electronic Communications Privacy Act of 1986 established limits on employer’s ability to monitor their employees, a new privacy act should be passed that explicitly addresses the employee and employer rights in the realm of Internet and email.
The advancements of technology in such a quick time have outpaced the privacy policies. In 1996, it was estimated that more than 40 million workers were corresponding via e-mail and the number was increasing twenty percent a year (Dichter 1996). But in 1986, when the Electronic Communications Privacy Act was passed, legislators did not consider that technology would get so advanced, and that email and the Internet would influence the workplace. ?The act was mainly to expand preexisting prohibitions on the unauthorized interception of wire and oral communications to encompass other forms of electronic communications? (Dichter 1996). This act was very broad. Therefore, when figuring out if email would be considered as an electronic communication, there were many exceptions including the provider of a service, which the courts interpreted as including employers (Stellin 1996). Therefore by having a more detailed privacy act, it will justify what employers can and can not do.
As more workers begin using email and the Internet in the workplace, employers become more concerned with what the employees are doing. In a survey, 35% of all companies keep an eye on their workers with surveillance (Grimsley 1997). The problem lies in the fact that a lot of companies do not tell their employees that they are monitoring them. There are several types of computer monitoring which an employer can use. ?Employers can use computer software that enables them to see what is on the screen or stored in the employees’ computer terminals and hard disks? (Privacy Rights.Org 1996). Some of this software includes Netnanny, Surfwatch, and Investigator. When these programs are used, Employees? believe that their privacy rights are violated. There have been many cases where the plaintiff (the employee) sued their employers for invasion of privacy. In Bourke v. Nissan Motor Corp., two employees were sending to each other personal emails of a sexual nature (Dichter 1996). Their employers read it, and issued the two workers written warnings for violating company policy (Dichter 1996). The employees thought that because they were given passwords to their emails, they had privacy (Dichter 1996). However, they were wrong in this matter as there is no law or act that states those employees cannot monitor email. The U.S. constitution also, does not guarantee a right of privacy. The Fourth Amendment that protects U.S. citizens against unreasonable search and seizure by the government does not protect private employers (Stellin 1996). In another court case, Shoars v. Epson America Inc., Ms. Shoars, an email administrator, told Epson?s employees that their email was confidential (Garcia 1996).
However she did not know that her supervisor was monitoring all the employees? e-mail (Garcia 1996). ?After finding out that the supervisor was monitoring e-mails, she filed a class-action suit on behalf of her and her fellow employees, claiming invasion of privacy?(Stellin 1996). The court ruled against Shoars stating that the right to privacy guaranteed by the California state constitution covered personal not business information. (Stellin 1996). Even though the company promised the employees that their email would be confidential, they still monitored e-mail. Without a privacy act, employees are usually left helpless from the courts. ?At this moment there is no strong legislation that specifically addresses electronic privacy concerns? ( Stellin 1996).
Employers on the other hand, believe that they should have the right to monitor e-mail and the Internet. Since the employer owns the computer network and the terminals, they believe they have the right to monitor (privacyrights.org). One reason they monitor is the fear of lawsuits. When someone sends another person adult-oriented jokes, racial jokes, pornography, etc., it can leave the company vulnerable to lawsuits (Bloomberg News 1999). In a survey, seventy percent said they have gotten adult-oriented mail while at work. One case that exemplifies this was when four female employees sued Microsoft for sexual harassment where the alleged sexual harassment included a number of pornographic e-mail messages sent between employees at the company’s information and technology division. The 4 female employees won 2.2 million dollars. This all can be avoided if employers monitor employees email. ?With monitoring email, an employer could hold a employee accountable, and with information will generate sophisticated reports – reports that could hold up in court if an employee tries to slap the company with a wrongful termination suit after they are let go? (Garfinkel 1997). Employers also fear that email and the Internet will affect the overall productivity. In a company, employment is a contract established between the employer and employee whereby the employee benefits the employer through his work and the employer benefits the employee through his salary. When electronics such as email distract employees, performance is usually affected. There is also the security issue, which employers are concerned about. In a survey, 1 out of 10 employees receives email that contains confidential company information (Bloomberg News 1999). If confidential information leave the company, companies could lose valuable ideas and money. These are many reasons why employers would not want another privacy act, because the 1986 Electronic Communication Privacy Act favors their interest more when dealing with email and the Internet.
Even though companies own the computer networks and terminals, workers should at least have the right to be notified when they are being monitored. This can be achieved by developing or extending corporate policies to address employee privacy expectations or by explaining to the employees the extent of their monitoring. In 1996, a survey by the Society for Human Resource Management found that only 36 percent of companies with email have policies addressing proper usage of the technology, while only 34 percent have a written policy on workplace privacy (Stellin 1996). With this information, companies are not doing their part in respecting their employees. States have attempted to pass laws to make sure companies don?t abuse the technology in their workplace. In California, Senator Debra Bowen (D-Redondo Beach) introduced an amendment to the state Labor Code (SB 1016) in the final week of the legislative session that will make it a misdemeanor for employers to look through an employee’s email without warning him or her in advance. (Glave 1999). However, state laws cannot do much, because they are limited to one state. What is needed is a federal law that would make monitoring email illegal in a private sector, unless the employers tell in advance that they are monitoring. One federal bill was nearly passed in 1993. The Privacy for Consumer and Workers Act was a bill to prevent abuses of electronic monitoring in the workplace, and for other purposes(Eff Org, 1993). However, the bill died but it died after being referred to the Committee on Labor and Human Resources. Many state laws and Federal bills have attempted to constrain the power employers have over employees email, but none have become a big impact in the workplace.
Private sectors have presented a potential threat to privacy in the workplace, since there are very few laws and acts to protect employees. The Electronic Communication Privacy Act has so many loopholes that there needs to be a new privacy act that will address the employers and employees right in terms of email and the Internet. The number of workplace conflicts between employers and employees have increased over technological privacy issues. With technology outpacing laws, employers are taking advantage of employees. ?The presence of monitoring can be very stressful to employees, which can lead to lower morale and productivity? (Allen 1996). The federal legislation should pass a new privacy act that would be better suited for the many advancements of technology, which influence the workplace.
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