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Page 1: Ariane Moss

Employee Privacy vs. Employer Employee Privacy vs. Employer Ownership: An Analysis of Ownership: An Analysis of

Employees’ Rights to Privacy & Employees’ Rights to Privacy & Corporations’ Authority to Corporations’ Authority to

MonitorMonitor

Ariane MossAriane Moss

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If you ever do any of this on a If you ever do any of this on a company machine….company machine….

• Use the Internet to surf the webUse the Internet to surf the web

• Make purchases onlineMake purchases online

• Chat over the webChat over the web

• Type a document using company computer, Type a document using company computer, printer, & paperprinter, & paper

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Ever thought about this?Ever thought about this?

• Can my employer search me when I Can my employer search me when I leave work for the day?leave work for the day?

• Can my employer require me to take a Can my employer require me to take a psychological test before promoting me psychological test before promoting me to management?to management?

• Can my employer fire me for personal Can my employer fire me for personal opinions expressed on my blog/social opinions expressed on my blog/social networking site? Wouldn’t this violate networking site? Wouldn’t this violate the 1the 1stst Amendment? Amendment?

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YOU NEED TO YOU NEED TO UNDERSTAND PRIVACY UNDERSTAND PRIVACY

RIGHTSRIGHTS

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Grey AreaGrey Area

• Clearly illegal activity easily identifiedClearly illegal activity easily identified

• Issues arise when work life & private life Issues arise when work life & private life spill overspill over

• Personal work done on company Personal work done on company property (on OR off-site)property (on OR off-site)

• Social networking sitesSocial networking sites

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WorkersWorkers

• Employees want Employees want “privacy”“privacy”

• Work life Work life balance/separation of balance/separation of work & lifework & life

• Don’t want every bit of Don’t want every bit of their time documentedtheir time documented• Performance monitoringPerformance monitoring• Micro-managing, Big Micro-managing, Big

BrotherBrother

• Stifling environmentStifling environment

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Monitoring MotivationMonitoring Motivation

• Several security related, proprietary, and Several security related, proprietary, and economic reasonseconomic reasons

• Maintaining a productive workplaceMaintaining a productive workplace

• Maintaining the security of confidential Maintaining the security of confidential company datacompany data

• Protecting the investment in computers and Protecting the investment in computers and other equipmentother equipment

• Protecting the business and community Protecting the business and community reputationreputation

• Cooperating with law enforcement during Cooperating with law enforcement during investigations of suspected illegal activityinvestigations of suspected illegal activity

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Types of MonitoringTypes of Monitoring

• Telephone/VoicemailTelephone/Voicemail

• Data stored on smartphonesData stored on smartphones

• EmailEmail

• Keystroke monitoringKeystroke monitoring

• Computer terminalsComputer terminals• Files storedFiles stored• Web pages accessedWeb pages accessed

• Text messages, chatsText messages, chats

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Employee Performance Employee Performance ManagementManagement

• Software-based technologies, integrative Software-based technologies, integrative approachapproach

• Time away from desk, frequency of calls, typing Time away from desk, frequency of calls, typing speedspeed

• Monitor & track employee performance including Monitor & track employee performance including contributions and incidentscontributions and incidents

• Evaluate performance through employee reviews Evaluate performance through employee reviews & appraisals& appraisals

• Track employee attendance including paid time Track employee attendance including paid time off, vacation time, sick days, etcoff, vacation time, sick days, etc

• Schedule and track employee training and Schedule and track employee training and development initiativesdevelopment initiatives

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Corporate PoliciesCorporate Policies

• Acceptable Use PolicyAcceptable Use Policy

• Non-Disclosure AgreementNon-Disclosure Agreement

• Employee Non-Compete AgreementEmployee Non-Compete Agreement

• Employment ContractEmployment Contract

• Any other employment document Any other employment document • Industry specificIndustry specific• Job-relatedJob-related

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Unreasonable InvasionUnreasonable Invasion

• DeceptionDeception• Requiring routine medical examination & testing Requiring routine medical examination & testing

for other conditions for other conditions

• Intrusion on employee’s personal lifeIntrusion on employee’s personal life• Hiring private detective to monitor your evening Hiring private detective to monitor your evening

activitiesactivities

• Violation of confidentialityViolation of confidentiality• Confidential company health questionnaire Confidential company health questionnaire

given to prospective employergiven to prospective employer

• Secret, intrusive monitoringSecret, intrusive monitoring• Video cameras above cash registers vs cameras Video cameras above cash registers vs cameras

in a restroom stallsin a restroom stalls

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ConsiderationsConsiderations

• U.S. Constitution, state’s constitution, U.S. Constitution, state’s constitution, and statutesand statutes

• Courts must evaluate whether a Courts must evaluate whether a particular workplace search or particular workplace search or surveillance action is legalsurveillance action is legal

• Employer’s justificationEmployer’s justification• Grey areaGrey area• Weight of their considerationsWeight of their considerations

• Employee’s reasonable expectationsEmployee’s reasonable expectations

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Telephone PolicyTelephone Policy

• Under federal case law, when an Under federal case law, when an employer realizes the call is personal, he employer realizes the call is personal, he or she must immediately stop or she must immediately stop monitoring the call. (Watkins v. L.M. monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11Berry & Co., 704 F.2d 577, 583 (11thth Cir. Cir. 1983)) 1983))

• However, when employees are told not However, when employees are told not to make personal calls from specified to make personal calls from specified business phones, the employee then business phones, the employee then takes the risk that calls on those phones takes the risk that calls on those phones may be monitored.may be monitored.

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Telephone TipsTelephone Tips

• The best way to ensure the privacy of The best way to ensure the privacy of your personal calls made at work is to your personal calls made at work is to use your own mobile phone, a pay use your own mobile phone, a pay phone, or a separate phone designated phone, or a separate phone designated by your employer for personal callsby your employer for personal calls

• *Remember: Employers can access data *Remember: Employers can access data stored on company issued computers stored on company issued computers and smartphonesand smartphones

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Case exampleCase example

In 2010, the Supreme Court of the United In 2010, the Supreme Court of the United States ruled that supervisors may read States ruled that supervisors may read through an employee’s communications through an employee’s communications

(including text messages) if they (including text messages) if they suspect rules are being violated as long suspect rules are being violated as long

as the employer has a work-related as the employer has a work-related purpose for inspecting an employee’s purpose for inspecting an employee’s desk or reading messages sent by the desk or reading messages sent by the employee on the employer’s system. employee on the employer’s system.

*Even if the employer said it’s OK to use *Even if the employer said it’s OK to use for personal use*for personal use*

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Email PrivacyEmail Privacy

• Email privacy generally does not existEmail privacy generally does not exist

• Employers can access personal email Employers can access personal email accounts if they are accessed on accounts if they are accessed on company computerscompany computers

• Different states have different standardsDifferent states have different standards

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Email TipsEmail Tips

• Make sure to read your company's Internet Make sure to read your company's Internet policypolicy

• If you're tempted to check personal If you're tempted to check personal emails at work...DON'T! You are better off emails at work...DON'T! You are better off checking your personal accounts at homechecking your personal accounts at home

• Don't ever use a personal email account for Don't ever use a personal email account for work related information. It is always work related information. It is always better to use the work email account you better to use the work email account you were givenwere given

• Even Even if some courts are softening their if some courts are softening their stance on email privacy...it's regarding stance on email privacy...it's regarding personal email accounts, not work issued personal email accounts, not work issued email ones.email ones.

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Case ExampleCase Example

In Holmes v. Petrovich Development Company, In Holmes v. Petrovich Development Company, LLC, a California court ruled that emails sent LLC, a California court ruled that emails sent

by an employee to her attorney from a by an employee to her attorney from a computer in her workplace were not computer in her workplace were not

protected by attorney-client privilege. The protected by attorney-client privilege. The employee used a company email account to employee used a company email account to send the emails. The court noted that the send the emails. The court noted that the

employee had been (1) told of the employee had been (1) told of the company’s policy that its computers were to company’s policy that its computers were to

be used only for company business, (2) be used only for company business, (2) warned that the company would monitor its warned that the company would monitor its computers for compliance with this policy, computers for compliance with this policy,

and (3) advised that employees using and (3) advised that employees using company computers have no right to privacy. company computers have no right to privacy.

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Workplace Privacy…Workplace Privacy…all all dependsdepends

• Camera monitoringCamera monitoring• Employers have the right to install video Employers have the right to install video

surveillance systems throughout the workplace surveillance systems throughout the workplace unless state law prohibits or restricts their useunless state law prohibits or restricts their use

• Polygraph testingPolygraph testing• Where it's allowed, the employee may have a Where it's allowed, the employee may have a

right to refuse without fear of employer right to refuse without fear of employer discrimination or reprisaldiscrimination or reprisal

• Workplace searchesWorkplace searches• The employer has a right to search offices, work The employer has a right to search offices, work

areas, desks, filing cabinets, lockers and office areas, desks, filing cabinets, lockers and office documents without the employee's permissiondocuments without the employee's permission

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Social Social Networking/BloggingNetworking/Blogging

• First Amendment protects us First Amendment protects us from the government, from the government, not not private corporationsprivate corporations

• State protectionsState protections• WhistleblowersWhistleblowers• Unionization (Concerted Unionization (Concerted

activity)activity)– RetaliationRetaliation– Political viewsPolitical views– Require all parties in a Require all parties in a

conversation to consent to conversation to consent to audio recordingaudio recording

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Social Social Networking/Blogging Networking/Blogging

cont’dcont’d• State protectionsState protections

• Off duty lawsOff duty laws• California, Colorado, Connecticut, North California, Colorado, Connecticut, North

Dakota and New York, have laws that Dakota and New York, have laws that prohibit employers from disciplining an prohibit employers from disciplining an employee based on off-duty activity on employee based on off-duty activity on social networking sites, unless the social networking sites, unless the activity can be shown to damage the activity can be shown to damage the company in some waycompany in some way

• Work-related posts have the potential Work-related posts have the potential to damage the company in some wayto damage the company in some way

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Social Networking Gone Social Networking Gone BADBAD

• Michael Hansom was fired by Microsoft Michael Hansom was fired by Microsoft after he posted photos of Macintosh after he posted photos of Macintosh computers arriving at Microsoft, with the computers arriving at Microsoft, with the tag line: "Even Microsoft wants G5s." tag line: "Even Microsoft wants G5s."

• Michael De Kort, blew the whistle on Michael De Kort, blew the whistle on Lockheed Martin in a YouTube video. De Lockheed Martin in a YouTube video. De Kort's video exposed possible design flaws Kort's video exposed possible design flaws in work the company was doing to refurbish in work the company was doing to refurbish patrol boats for the Coast Guard. That De patrol boats for the Coast Guard. That De Kort's complaints were later confirmed in Kort's complaints were later confirmed in a government report and he won an award a government report and he won an award for his ethics in trying to protect the public for his ethics in trying to protect the public didn't save him from getting fired.didn't save him from getting fired.

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Social Social Networking/Blogging TipsNetworking/Blogging Tips

• Don't criticize, make fun of, or make Don't criticize, make fun of, or make harassing comments about coworkers.harassing comments about coworkers.

• Don't post anything that could be construed Don't post anything that could be construed as racist, sexist, or otherwise bigotedas racist, sexist, or otherwise bigoted

• Don't reveal company trade secrets, Don't reveal company trade secrets, confidential information, or other things the confidential information, or other things the company would rather not make public.company would rather not make public.

• Before using your blog to vent about Before using your blog to vent about workplace problems, try to solve them workplace problems, try to solve them through the usual channels. through the usual channels.

• Blog anonymously, or restrict viewers to Blog anonymously, or restrict viewers to your blog.your blog.

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Final ThoughtsFinal Thoughts

• Unless company policy specifically states otherwise, Unless company policy specifically states otherwise, your employer may listen, watch and read most of your employer may listen, watch and read most of your workplace communicationsyour workplace communications

• ALWAYS read and keep a copy of employment ALWAYS read and keep a copy of employment documentsdocuments

• Use discretion when using corporate property for Use discretion when using corporate property for personal usepersonal use

• NEVER assume that you have “privacy” even if you NEVER assume that you have “privacy” even if you are permitted to use corporate property for private are permitted to use corporate property for private useuse

• A “legitimate” reason for search or monitoring is A “legitimate” reason for search or monitoring is generally upheld in courtgenerally upheld in court

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ReferencesReferences

• http://www.nolo.com/legal-encyclopediahttp://www.nolo.com/legal-encyclopedia

• http://www.workplacefairness.org/surveillancehttp://www.workplacefairness.org/surveillance

• http://www.privacyrights.orghttp://www.privacyrights.org

• http://labor-employment-law.lawyers.com/human-resources-law/http://labor-employment-law.lawyers.com/human-resources-law/Employee-Privacy-in-the-Workplace.htmlEmployee-Privacy-in-the-Workplace.html

• http://www.managerassistant.com/employee-performance.htmlhttp://www.managerassistant.com/employee-performance.html

• http://articles.latimes.com/2010/jun/18/nation/la-na-court-worker-http://articles.latimes.com/2010/jun/18/nation/la-na-court-worker-texting-20100618texting-20100618

• http://blogs.findlaw.com/law_and_life/2009/11/work-email-privacy-http://blogs.findlaw.com/law_and_life/2009/11/work-email-privacy-rules-of-the-road-and-tips.htmlrules-of-the-road-and-tips.html

• http://online.wsj.com/article/SB125859862658454923.htmlhttp://online.wsj.com/article/SB125859862658454923.html

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QuestionsQuestions

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