Privacy in the Workplace

    Most American's have no concept of their lack of privacy in the workplace. They may make the occasional remark about some law, or procedure, being Orwellian; but for the most part feel confident in their privacy. In reality, George Orwell's 1984 has long come to fruition in the United States, but not though the government, rather by private industry. While the invasions of privacy have been going on a long time, these intrusions have grown even more egregious. From your home computer to your bedroom to who you marry, nothing is off limits and surprisingly, very little is protected by law. Of a much greater concern, employers are unnecessarily violating the privacy of their employees under the guise of protecting corporate interests.

    Employers are unnecessarily violating the privacy of their employees, or job applicants, by requiring details of their private life. In 1990 the City of North Miami began requiring candidates to sign an affidavit that they had not used tobacco products for the past year. Arlene Kurtz, who had passed the written examination, was presented with the affidavit to sign stating that she had not used tobacco products within the last year. Since Ms. Kurtz was a smoker she refused to sign the affidavit; she then proceeded to sue to the city on the grounds of invasion of her privacy (Kilpatrick, 1994, p. 8). The affidavit was part of an initiative, by the city, to remove tobacco users from their workforce to lower the city's insurance costs. Ultimately, the Florida Supreme Court sided in favor of the City of North Miami since Arlene Kurtz did not have a reasonable expectation of privacy in regards to smoking, since smoking is a very public activity. The City of North Miami had a noble goal of lowering their costs, since they completely paid for the health insurance, and thus the financial burden to the taxpayers (Lane, 2003, p. 234-235). Unfortunately, they choose a route which involved an unnecessary intrusion in employee's private lives; in particular, the city decided upon something that in no way impacts the employee's job performance. The City of North Miami could have done a number of different things to accomplish the same goal, without invading employee's privacy. The easiest, and most cost effective solution, would be to have two separate insurance plans: a plan for tobacco users, and a plan for non-tobacco users. The tobacco users would then have to pay the difference in cost between the plans. Ultimately this would benefit the City of North Miami by being able to hire the best employees, without regard to the tobacco habits; while, at the same time, minimizing the city's health insurance costs.

    Employers are beginning to unnecessarily invade their employees' privacy through corporate policies on employee dating of a coworker. Some companies have adopted policies requiring employees to notify management when “coworkers are romantically involved” so they have “documentation of a consensual relationship” for their own protection (Wilson, Filosa, & Fennel, 2003, p. 78). The company Guardsmark was even more extreme; when they suspected their employee, Ms. Fayard, of “dating an employee of their client” Guardsmark began an intensive investigation (Hubbartt, 1998, p. 33). Guardsmark's investigation of their employee, Ms. Fayard, went so far as to include “surveillance of Fayard's house and running license checks on cars and persons who visited Fayard at her house” (Hubbartt, 1998, p. 33). While the goals of these employers are noble, and the policies are there to help in “maintaining a peaceful and productive work environment” (Wilson et al., 2003, p. 87); employers are unnecessarily invading their employee's privacy to achieve those goals. Rather than limiting employee's after hours activities, employers should setup policies and procedures that govern behavior during working hours. Examples of this include a strict sexual harassment policy, as well as good oversight of all employees, regardless of whether they are dating, to make sure that they are being productive. In turn this modification of policy can significantly benefit the employer by encouraging happy employees that do not have to disclose private details of their life, as well as retaining employees who otherwise would leave the company to pursue a romantic relationship. The company still remains protected as long as they strictly enforce their sexual harassment policies.

    An emerging threat to employee privacy is the employer’s access to their employee’s personal home computers. In a landmark case Northwest Airlines seized approximately 10 flight attendant's home computers and had them forensically analyzed to look for evidence of a sickout. (Wieffering, & Kennedy, 2000, p. A1) This set a precedent that home computers are not off limits to employers, especially when it comes to litigation. Part of the negative precedent set was how the evidence was gathered:

The Northwest case is unusual, workplace experts say, because typically a company would ask employees to turn over computer files relevant to a lawsuit rather than get a court order to copy an entire hard drive. Yet the strategy is growing more common, say computer forensic analysts, who can excavate ancient E-mail and files that users thought they had deleted long ago. Just dragging a file to the recycling bin doesn't really erase it from the hard drive. And some companies are going one step further: They're obtaining court orders to gather the evidence before plaintiffs have a chance to erase it with software that wipes files clean. "If there's an imminent threat that data are going to be destroyed, we usually swoop in," says Joan Feldman, the president of Computer Forensics Inc., a Seattle firm that helps attorneys sift through computerized data for lawsuits.(Hawkins, 2000, p. 85)

With the prevalence of companies using virtual private networks to allow employees to connect to work from their home computer, the line is blurring on what is the company's and what is the employee's. There are two preventative things an employer can do to help mitigate the employee privacy issues involved with the seizure of a home computer, and one measure if an employee's home computer does get seized. First, employers should make employees aware that if they are using their home computer for business related activities that their personal computer is considered company property subject to normal corporate policies. Secondly, if employers are having employees work away from the office, then those employees should be given a work laptop. This helps segregate the personal from the private, and has the added benefit of the company being able to better manage the computers to prevent the introduction of viruses and malware into the corporate network. Finally, if the company does need to seize a home computer it should be done by a disinterested third party, who will help protect the confidentiality of employee data outside the scope of the search.

    Employers have continued the long trend of abusing employee privacy under the guise of corporate interests. Furthermore, corporations have repeatedly demonstrated that they tend to follow established patterns, and that it usually takes legislation to have them modify their behaviors. Disappointingly, there are ways that employers could work around these privacy issues; and, as shown in the examples cited, frequently to their benefit. While many states have implemented privacy legislation (Wilson et al., 2003, p. 81), much still needs to be done to ensure that employers are not abusing their position. Employees need to take an active interest in their privacy, and take reasonable measures to protect their private lives. Employees should understand the privacy concerns with their employer's corporate policies, and take measures to mitigate those intrusions. Furthermore, the employee should take reasonable measures to secure their home computer, and other electronic devices, to keep their information private. 1984 need not exist at the workplace in 2005.

References

Conley, L. (2004). The privacy arms race. Fast Company, 84, 27. Retrieved December 13, 2004, from InfoTrac OneFile database

Hawkins, D. (2000). Data on home computers not necessarily your own. U.S. News & World Report, 128(8), 85. Retrieved December 20, 2004, from EBSCOhost database

Hubbartt, W. S. (1998). The new battle over workplace privacy. New York: AMACOM.

Kilpatrick, J. J. (1994). The assault on smokers' right to puff at home. Human Events, 50(13), 8. Retrieved December 20, 2004, from EBSCOhost database

Lane, F. S. (2003). The naked employee: How technology is compromising workplace privacy. New York: AMACOM.

Wieffering, E., & Kennedy, T (2000, February 8). Search raises privacy issues worker vs. company rights conflict in check of NWA employees' home computers. Star Tribune Newspaper of the Twin Cities, p. A1. Retrieved January 9, 2005, from ProQuest database

Wilson, R. J., Filosa, C., & Fennel, A. (2003). Romantic relationships at work: Does privacy trump the dating police? Defense Counsel Journal, 70(1), 78-88. Retrieved January 9, 2005, from EBSCOhost database