Ariane Moss

1. Employee Privacy vs. Employer Ownership: An Analysis of Employees’ Rights to Privacy & Corporations’ Authority to Monitor Ariane Moss

2. 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 • Type a document using company computer, printer, & paper

3. 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? Wouldn’t this violate the 1st Amendment?

4. you need to understand privacy rights

5. Grey Area • Clearly illegal activity easily identified • Issues arise when work life & private life spill over • Personal work done on company property (on OR off-site) • Social networking sites

6. Workers • Employees want “privacy” • Work life balance/separation of work & life • Don’t want every bit of their time documented • Performance monitoring • Micro-managing, Big Brother • Stifling environment

7. Monitoring Motivation • Several security related, proprietary, and economic reasons • Maintaining a productive workplace • Maintaining the security of confidential company data • Protecting the investment in computers and other equipment • Protecting the business and community reputation • Cooperating with law enforcement during investigations of suspected illegal activity

8. Types of Monitoring • Telephone/Voicemail • Data stored on smartphones • Email • Keystroke monitoring • Computer terminals • Files stored • Web pages accessed • Text messages, chats

9. Employee Performance Management • Software-based technologies, integrative approach • Time away from desk, frequency of calls, typing speed • Monitor & track employee performance including contributions and incidents • Evaluate performance through employee reviews & appraisals • Track employee attendance including paid time off, vacation time, sick days, etc • Schedule and track employee training and development initiatives

10. Corporate Policies • Acceptable Use Policy • Non-Disclosure Agreement • Employee Non-Compete Agreement • Employment Contract • Any other employment document • Industry specific • Job-related

11. Unreasonable Invasion • Deception • Requiring routine medical examination & testing for other conditions • Intrusion on employee’s personal life • Hiring private detective to monitor your evening activities • Violation of confidentiality • Confidential company health questionnaire given to prospective employer • Secret, intrusive monitoring • Video cameras above cash registers vs cameras in a restroom stalls

12. Considerations • U.S. Constitution, state’s constitution, and statutes • Courts must evaluate whether a particular workplace search or surveillance action is legal • Employer’s justification • Grey area • Weight of their considerations • Employee’s reasonable expectations

13. Telephone Policy • Under 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.

14. 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

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

16. Email Privacy • Email privacy generally does not exist • Employers can access personal email accounts if they are accessed on company computers • Different states have different standards

17. Email Tips • Make sure to read your company's Internet policy • If you're tempted to check personal emails at work...DON'T! You are better off checking your personal accounts at home • Don't ever use a personal email account for work related information. It is always better to use the work email account you were given • Even if some courts are softening their stance on email privacy...it's regarding personal email accounts, not work issued email ones.

18. Case Example In 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 company’s 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.

19. Workplace Privacy…all depends • Camera monitoring • Employers have the right to install video surveillance systems throughout the workplace unless state law prohibits or restricts their use • Polygraph testing • Where it's allowed, the employee may have a right to refuse without fear of employer discrimination or reprisal • Workplace searches • The employer has a right to search offices, work areas, desks, filing cabinets, lockers and office documents without the employee's permission

20. Social Networking/Blogging • First Amendment protects us from the government, not private corporations • State protections • Whistleblowers • Unionization (Concerted activity) • Retaliation • Political views • Require all parties in a conversation to consent to audio recording

21. Social Networking/Blogging cont’d • State protections • Off duty laws • California, 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 way • Work-related posts have the potential to damage the company in some way

22. Social Networking Gone BAD • Michael Hansomwas 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 a government report and he won an award for his ethics in trying to protect the public didn't save him from getting fired.

23. Social Networking/Blogging Tips • Don't criticize, make fun of, or make harassing comments about coworkers. • Don't post anything that could be construed as racist, sexist, or otherwise bigoted • Don't reveal company trade secrets, confidential information, or other things 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.

24. Final Thoughts • Unless company policy specifically states otherwise, your employer may listen, watch and read most of your workplace communications • ALWAYS read and keep a copy of employment documents • Use discretion when using corporate property for personal use • NEVER assume that you have “privacy” even if you are permitted to use corporate property for private use • A “legitimate” reason for search or monitoring is generally upheld in court

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

26. Questions ?