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Employee Privacy vs. Employer Ownership: An Analysis of Employees’ Rights to Privacy & Corporations ’ Authority to Monitor. Ariane Moss. If you ever do any of this on a company machine…. Use the Internet to surf the web Make purchases online Chat over the web - PowerPoint PPT Presentation

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  • Employee Privacy vs. Employer Ownership: An Analysis of Employees Rights to Privacy & Corporations Authority to Monitor

    Ariane Moss

  • If you ever do any of this on a company machine.Use the Internet to surf the webMake purchases onlineChat over the webType a document using company computer, printer, & paper

  • Ever thought about this?Can my employer search me when I leave work for the day?Can my employer require me to take a psychological test before promoting me to management?Can my employer fire me for personal opinions expressed on my blog/social networking site? Wouldnt this violate the 1st Amendment?

  • YOU NEED TO UNDERSTAND PRIVACY RIGHTS

  • Grey AreaClearly illegal activity easily identifiedIssues arise when work life & private life spill overPersonal work done on company property (on OR off-site)Social networking sites

  • WorkersEmployees want privacyWork life balance/separation of work & lifeDont want every bit of their time documentedPerformance monitoringMicro-managing, Big BrotherStifling environment

  • Monitoring MotivationSeveral security related, proprietary, and economic reasonsMaintaining a productive workplaceMaintaining the security of confidential company dataProtecting the investment in computers and other equipmentProtecting the business and community reputationCooperating with law enforcement during investigations of suspected illegal activity

  • Types of MonitoringTelephone/VoicemailData stored on smartphonesEmailKeystroke monitoringComputer terminalsFiles storedWeb pages accessedText messages, chats

  • Employee Performance ManagementSoftware-based technologies, integrative approachTime away from desk, frequency of calls, typing speedMonitor & track employee performance including contributions and incidentsEvaluate performance through employee reviews & appraisalsTrack employee attendance including paid time off, vacation time, sick days, etcSchedule and track employee training and development initiatives

  • Corporate PoliciesAcceptable Use PolicyNon-Disclosure AgreementEmployee Non-Compete AgreementEmployment ContractAny other employment document Industry specificJob-related

  • Unreasonable InvasionDeceptionRequiring routine medical examination & testing for other conditions Intrusion on employees personal lifeHiring private detective to monitor your evening activitiesViolation of confidentialityConfidential company health questionnaire given to prospective employerSecret, intrusive monitoringVideo cameras above cash registers vs cameras in a restroom stalls

  • ConsiderationsU.S. Constitution, states constitution, and statutesCourts must evaluate whether a particular workplace search or surveillance action is legalEmployers justificationGrey areaWeight of their considerationsEmployees reasonable expectations

  • Telephone PolicyUnder federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However, when employees are told not to make personal calls from specified business phones, the employee then takes the risk that calls on those phones may be monitored.

  • Telephone Tips The best way to ensure the privacy of your personal calls made at work is to use your own mobile phone, a pay phone, or a separate phone designated by your employer for personal calls*Remember: Employers can access data stored on company issued computers and smartphones

  • Case exampleIn 2010, the Supreme Court of the United States ruled that supervisors may read through an employees communications (including text messages) if they suspect rules are being violated as long as the employer has a work-related purpose for inspecting an employees desk or reading messages sent by the employee on the employers system. *Even if the employer said its OK to use for personal use*

  • Email PrivacyEmail privacy generally does not existEmployers can access personal email accounts if they are accessed on company computersDifferent states have different standards

  • Email TipsMake sure to read your company's Internet policyIf you're tempted to check personal emailsatwork...DON'T! You are better off checking your personal accounts at homeDon't ever use a personal email account for work related information. It is always better to usethe work email account you were givenEven if some courts are softening their stance on email privacy...it's regarding personal email accounts, not work issued email ones.

  • Case ExampleIn Holmes v. Petrovich Development Company, LLC, a California court ruled that emails sent by an employee to her attorney from a computer in her workplace were not protected by attorney-client privilege. The employee used a company email account to send the emails. The court noted that the employee had been (1) told of the companys policy that its computers were to be used only for company business, (2) warned that the company would monitor its computers for compliance with this policy, and (3) advised that employees using company computers have no right to privacy.

  • Workplace Privacyall dependsCamera monitoringEmployers have the right to install video surveillance systems throughout the workplace unless state law prohibits or restricts their usePolygraph testingWhere it's allowed, the employee may have a right to refuse without fear of employer discrimination or reprisalWorkplace searchesThe employer has a right to search offices, work areas, desks, filing cabinets, lockers and office documents without the employee's permission

  • Social Networking/BloggingFirst Amendment protects us from the government, not private corporationsState protectionsWhistleblowersUnionization (Concerted activity)RetaliationPolitical viewsRequire all parties in a conversation to consent to audio recording

  • Social Networking/Blogging contdState protectionsOff duty lawsCalifornia, Colorado, Connecticut, North Dakota and New York, have laws that prohibit employers from disciplining an employee based on off-duty activity on social networking sites, unless the activity can be shown to damage the company in some wayWork-related posts have the potential to damage the company in some way

  • Social Networking Gone BADMichael Hansom was fired by Microsoft after he posted photos of Macintosh computers arriving at Microsoft, with the tag line: "Even Microsoft wants G5s." Michael De Kort, blew the whistle on Lockheed Martin in a YouTube video. De Kort's video exposed possible design flaws in work the company was doing to refurbish patrol boats for the Coast Guard. That De Kort's complaints were later confirmed in agovernment report and he won an award for his ethics in trying to protect the public didn't save him from getting fired.

  • Social Networking/Blogging TipsDon't criticize, make fun of, or make harassing comments about coworkers.Don't post anything that could be construed as racist, sexist, or otherwise bigotedDon't reveal company trade secrets, confidential information, or otherthings the company would rather not make public.Before using your blog to vent about workplace problems, try to solve them through the usual channels. Blog anonymously, or restrict viewers to your blog.

  • Final ThoughtsUnless company policy specifically states otherwise, your employer may listen, watch and read most of your workplace communicationsALWAYS read and keep a copy of employment documentsUse discretion when using corporate property for personal useNEVER assume that you have privacy even if you are permitted to use corporate property for private useA legitimate reason for search or monitoring is generally upheld in court

  • Referenceshttp://www.nolo.com/legal-encyclopediahttp://www.workplacefairness.org/surveillancehttp://www.privacyrights.orghttp://labor-employment-law.lawyers.com/human-resources-law/Employee-Privacy-in-the-Workplace.htmlhttp://www.managerassistant.com/employee-performance.htmlhttp://articles.latimes.com/2010/jun/18/nation/la-na-court-worker-texting-20100618http://blogs.findlaw.com/law_and_life/2009/11/work-email-privacy-rules-of-the-road-and-tips.htmlhttp://online.wsj.com/article/SB125859862658454923.html

  • Questions?