May 26th, 2014

Employee Rights vs. Business Rights

Workers who suspect they're being monitored at work probably are - at least a little. While Bill Gates himself might not be doing the watching, studies suggest that nearly three-fourths of employers engage in some degree of employee monitoring

Workers who suspect they’re being monitored at work probably are – at least a little. While Bill Gates himself might not be doing the watching, studies suggest that nearly three-fourths of employers engage in some degree of employee monitoring

As I’ve mentioned in recent entries here, when it comes to employees’ rights to privacy, the deck is heavily stacked in favor of the employer. Businesses have broad and sweeping rights to monitor employee messaging, Internet, and email usage, to eavesdrop on phone calls, and to videotape them, provided they can demonstrate a legitimate need to do so. Businesses with employees who drive company-owned vehicles are even allowed to using GPS satellite technology to track those employees. The key to exercising all of this power is for employers to write clearly stated policies that make it crystal-clear what will be monitored and how. Such policies should also include statements informing employees that they have virtually no expectation of privacy when using company email accounts and/or computer equipment.

Balance of Power

Workers cede a stunning number of privacy rights when they sign initial employment paperwork. That’s not to say employees have no rights to privacy at all – they do – but it’s certainly fair to say that in legal terms, the business right to know largely trumps employee privacy rights. As a legendary comic book hero was once reminded, though, “With great power comes great responsibility.” Businesses would do well to remember that credo when creating and enforcing monitoring policies. How will said policies and their enforcement impact the workplace environment, employee morale, and employee/employer relationships? And since there yet remains a modest number of employee rights to privacy in the workplace, it’s important for employers to understand those, too.

Don’t Forget Social Media

The rise of Facebook and the explosion of personal blogs has fundamentally altered the workplace. Companies now turn to these sites to both assist in the hiring process and to monitor employee activity outside of work. Although employees should be careful regarding what they post publicly to a social network or to a personal blog, in recent years, the National Labor Relations Board (NLRB) has declared that employees’ rights in the virtual world – just as in the real world – include the right to communicate and discuss work-related matters such as wages, benefits, and working conditions. As a result, the NLRB has outlawed broadly defined social network and blogging policies. For instance, a company policy must be more specific than merely stating that an employee must refrain from posting “disrespectful” or “disparaging” comments toward the company on the Internet. To legally discipline or fire an employee for an Internet post, a company must be able to demonstrate actual harm to the business caused by the post. Companies should also avoid basing hiring decisions strictly on public blogs or Facebook posts. Such decisions can easily lead to inadvertent or intentional discrimination based on factors that are protected in the real world (gender, religion, marital status, age, etc.).

Employee Rights

So the obvious question is, exactly what rights to privacy do employees have? What are the business’ obligations in regards to employee privacy rights? First of all, in addition to creating clear privacy policies, companies are also legally obligated to enforce those policies as consistently and uniformly as possible among all employees. If they don’t, legal challenges to those policies have a much greater chance of success. Second, employee rights also include an employer’s obligation to enforce polices without malice or reprisal. Employees can’t be singled out, in other words, and management is bound by law to use private employee data solely in the company’s business interests. In this regard, employees also have a right to have an impartial third party within the company – usually human resources – serving as a watchdog to be certain that company policy is being fairly enforced.

By Frank Winston, SoftActivity

Photo by SOCIALisBETTER (Flickr)