Privacy Problems for Surveillance in the Workplace

MELISSA SCOTT—Most employees in the workplace can expect to be monitored to a fair extent. The use of company internet and email suggests a level of oversight. A 2002 survey by the Bentley College Center For Business Ethics discovered that 92% of American businesses with ethics officers monitor their employees’ email accounts. However, businesses have taken steps to increase employee surveillance—even tracking employees’ movements within and around the office through GPS and motion and heat sensors.

Last year, journalists at the British newspaper Telegraph discovered tiny black devices, called “OccupEye” under their desks. The devices were used to detect how long employees were at their desks. Despite the employer’s insistence that the devices were gathering data to reduce energy costs, the devices were removed. Yet other surveillance devices such as sensors and apps have sprung up in workplaces throughout globe.

A Finnish company, Futurice, uses Wi-Fi beacon triangulation to create a live map, showing where employees are in the work building at any given moment. Wireless sensors attached to objects or locations broadcast radio signals to smartphones. The motion sensors send information to the smartphones about which employees are at their desks or out of the office, and the information is collected on the live map app.

Companies also use GPS tracking devices in employees’ ID badges, some of which include Bluetooth, microphones, motion sensors, and infrared beams. Sensor badges such as these monitor not only the whereabouts, but also the communications between individuals, for instance, voice, posture, body language, and determinations of who spoke to whom for how long. Bank of America and Cubist Pharmaceuticals Inc. are two notable companies that have implemented versions of these tracking badges.

The purpose behind these devices is to collect data concerning employee interaction and production. Employers insist that the devices serve only to enhance company efficiency: the sensors allegedly help employer maximize space, utilize resources, and generate fruitful colleague communications.

This concentrated surveillance implicates legal issues involving privacy rights. On the federal level, American employees in the workplace have no legal protection from employer surveillance. In fact, there are no federal statutes that protects privacy while on the clock.

Rebecca Greenfield, a reporter at BloombergBusiness, noted, “Legally speaking, U.S. businesses are within their rights to go full-on Eye of Sauron . . . [b]asically, anything you do in the workplace, it’s kind of your employer’s business.” Further, Lewis Maltby—president of the National Workrights Institute—remarked, “Employers can do any kind of monitoring they want in the workplace that doesn’t involve the bathroom.”

The primary law that applies to this subject is the Electronic Communications Privacy Act of 1986 (ECPA), which governs third-party interceptions of electronic communications. However, the ECPA provides major exceptions for employers, bestowing broad rights to monitor employees. An employer may monitor employee conversations if (1) they occur during the ordinary course of business, or (2) with the employee’s implied consent. Regarding the attachment of monitoring devices on workplaces telephones or desks, courts consult the “business extension exception,” which examines reasonable business justifications for the monitoring, employee notification regarding the employer’s fight to monitor, and consistency in the employer’s acts. Further, in the absence of the business exclusion exemption, the actual test of whether an employee has a reasonable expectation of privacy depends on the ownership of the equipment used to transmit the message. If the equipment belongs to the employer, the employer has the legal right to monitor anything and everything on it.

Lawsuits arise when employee surveillance on smartphone apps may continue past employee work hours—i.e., during the evening, early morning, or weekend hours. Plaintiffs argue that such monitoring fails the reasonableness factor of the business exclusion exemption. For example, one employee was fired after disabling her GPS-enabled app upon realizing her employer could track her movements even after leaving work. According to the 2015 lawsuit filed in the Superior Court of California, “the privacy implications of that kind of 24/7 monitoring ‘would be highly offensive to a reasonable person.’”

Another legal question involving employee surveillance arises in the context of law firms. ABA Model Rule 1.6 relates to client confidentiality. Rule 1.6 forbids a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. If law firms implemented these surveillance methods, i.e., tracking attorneys’ movements, whereabouts, and communications, several confidentiality issues may appear. Certain clients may not want to be tracked by association of their lawyers. Similarly, communications between the lawyer and client that are monitored or traced—especially without either the client or the lawyer’s knowledge or consent—may violate the rule.

The actual use of employee sensors among law firms seems, at least for now, to be nominal compared to other business firms. Surveillance devices appear to be limited to tracking whether the employees are present at the firm—but not their exact whereabouts and interactions. The New York law firm Akin & Smith LLC requires paralegals, receptionists, and law clerks to clock in and out by placing a finger on a sensor kept at the secretary’s desk. A managing partner at the firm maintained that the sensor system “keeps everyone honest,” and a paralegal commented that she rushes her lunch or other breaks to get back to the office, in fear of the tracking information. Nevertheless, surveillance technology looms a slippery slope, and the apparent workplace success other firms have found through its use may filter into the legal profession.

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