Wednesday, November 2, 2011

Electronic Surveillance of Employees

            In 1986, the United States Congress passed into law the Electronic Communications Privacy Act (ECPA)(10) the federal law statute provides for criminal and civil sanctions for ‘‘any person who...intentionally intercepts, endeavors to intercept, or procures any other person to intercept ... any wire, oral, or electronic communication.’’ However the ECPA contains a number of exceptions with ‘‘permitted interceptions’’ of communications, including: (a) the ‘‘Business Extension’’ exception; (b) the ‘‘One Party Consent’’ exception; and (c) an exception regarding the Employer protecting its Rights or Property. Also allows for access to and examination of (d) ‘‘stored’’ employee communications. In addition virtually every state has some sort of statute dealing with eavesdropping. In sum, under the law an employer have a legitimate right to protect themselves and make sure that employees execute their responsibilities and this allows them to engage in electronic     surveillance of employees in the vast majority of circumstances. 
            However the extension that the employer will engage in electronic surveillance of employees  suggests that they must deal with ethical and managerial issues of what constitutes good management practice with respect to activities of employers in using electronic surveillance of employee communications and they must balance the competing interests of companies with those of their employees(11). In this case the organizational culture is a critical consideration whether the company wants to control everything and limited the creative potential. Also what kind of relationship is the company creating? Constant monitoring can lead to a situation where the employees don’t trust in the company and the company doesn’t trust in the employee. In this environment how can the company be productive? For example on the video Shelly, one of the employees prefers to leave the company than to be “invaded “constantly by the eavesdropping employees and also keep a high productive efficiency. Companies should balance their rights to protect themselves and maintain employee morale trough introducing surveillance of employee communications by conducting open and transparent studies.
          According to Oxford Dictionaries privacy is the state or condition of being free from being observed or disturbed by other people; the state of being free from public attention. However in the workplace since the employees are not at home, they must expect to be observed and sometimes this observation could constitute an unauthorized intrusion. Employers want to make sure their employees are using company time productively and not creating a legal liability for their business as a result of harassing or offensive communication (1). Most institutions worldwide use email and the Internet as a result far more sophisticated software has been created to continuously monitor employees’ actions.
            The common law tort of invasion of privacy is recognized by most states. The Restatement (Second) of Torts §652B defines invasion of privacy as: “...intentionally intruding, physically or otherwise, upon the solitude or seclusion of another..., if the intrusion would be highly offensive to a reasonable person.”(1). That said, the employee can reasonably expect to have some privacy and an expectation that monitoring should not become an intrusion or even highly offensive. Although for many legitimate reasons organizations can and do monitor what is occurring on their buildings and computer systems. However those attitudes create an ethical dilemma that can range from workplace harassment, to loss of productivity, and even to company sabotage.
            Finally when organization makes an ethical choice according to the Deontological approach, they should be guided by certain overriding rights and duties (3). However human beings cannot reason their ways to a set of absolute rules for right behavior. Then in order to pit the right to life and safety, organizations go against the right to privacy using technology to monitor employees without the employee even knowing he or she is being ‘watched’, making privacy in workplace a very difficult place to find.
Basically in terms of attitudes related with the job and job tasks in an open area or in an enclosed office there should not be any difference, especially related to ethical behavior as this should be the same in both areas. However, some people need an enclosed office to have more silent or less interference to perform better jobs task. Therefore employee should have greater expectation of privacy in an enclosed office because sometimes it is necessary to discuss strategic subject matter that others employees should not know. A manager may need to have a specific conversation with an employee for which they probably need a certain level of  privacy.
         However according to Halbert, T. & Ingulli, E. (4) electronic monitoring is now a commonplace, and as long as the employer can point a legitimate purpose for monitoring, as happened in that case when Herman said that monitor the sales floor was justified in order to maintain more honesty in the car sales business, then it will be difficult for the employees to win cases against the company.          
            Since we are in a democratic society, organization should at least give warning if they want to monitor the employee in their sales table or even in their enclosed office. And then as soon as the company does not show any signs of being offensive it should be acceptable since the employees understand they are in a workplace to work there should be nothing to hide from the company.
In fact what managers need was to build trust with his employees and for this he could had engaged in others practices such as sharing what he knows, having an open communication or delegation of control(5). Also design of human resource (6), strong cultural values and norms (7), and good organizational structure (8) would be another better ways to have trustworthy behavior.                                                   Surveillance was the easiest way that manager found to ascertain whether his salespersons were honest and provided sufficient ground. However,  the benefits from surveillance were limited in control of the problem that exist but does not guarantee that the problem will be eliminated. Also the surveillance helped to identify the misconduct after the behavior it had already taken place did not really solve the problem. Since the salesmen know that they have been monitored they would avoid behavior that is not acceptable in the place that they know is being monitored, but they can continue to conduct the same behavior in an outside area which they know is not monitored.
            Work with human beings needs to acknowledge more about the whole situation than only the consequence. To make sure that the appropriate results are achieved it is important for  managers first to identify the problem and to do a performance evaluation (9) to judge the situation and after that take an appropriate procedure and course of action.

With respect to the third parties which on the video we can consider as the client, federal law does not prohibit audio recording of phone conversations as long as one party on the call consents to recording (12). An important exception is made for personal calls. Under federal case law, when an employer realizes the call is personal, he or she must immediately stop monitoring the call. (13) 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. However there are some states laws such as Connecticut, where the  Labor Code includes restrictions about how and where the employer can monitor the employee (14). Labor Unions also can have specific negotiations with the employer, so it is necessary for the union members to check the agreed regulations if they have any concern about surveillance.
            Usually employers make sure all the expected behaviors are covered through their policy which all the employees have to agree, such as a company handbook. With this, policies agreed by the employee give  “consent” to the company’s surveillance, which would seem to eliminate the law coverage.
            For instance since the client Ms. Drummand was not asked about the surveillance and also the salesmen Tony seems not know about the surveillance we can consider the action illegal? Yes especially in several states (i.e., California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington) where is required that all
parties consent when one party wants to record a telephone conversation (15). Even considering the federal law, at least Tony should have known that the conversation were been taped, therefore the case can be considered illegal.
Nord G. Daryl, McCubbins Tipton F. and Nord Jeretta Horn (2006). E-Monitoring in             the WorkplacePRIVACY, LEGISLATION, AND SURVEILLANCE SOFTWARE.Full          Text Available. Communications of the ACM; Aug2006, Vol. 49 Issue 8, p73-79, 5p, 2             Charts.
Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom edition (6th ed.). Mason, OH: South-Western Cengage Learning.
Sapienza, H. J., & Korsgaard, M. A. 1996. Managing investor relations: The impact of procedural             justice in establishing and sustaining investor support. Academy of Management Journal,     39: 544-574
Creed, W. E. D., & Miles, R. E. 1996. Trust in organizations: A conceptual framework linking      organizational forms, managerial philosophies, and the opportunity costs of controls. InRM.
Kramer & T. R. Tyler (Eds.), Trust in organizations: Frontiers of theory and research: 16-38.         Thousand Oaks, CA: Sage.
Rousseau, D. M. 1990. Assessing organizational culture: The case for multiple methods. In B.       Schneider (Ed.), Organizational climate and culture: 153-192. San Francisco: Jossey-Bass.

O'Reilly, C. A., Ill, & Caldwell, D. R. 1985. The impact of normative social influence and            cohesiveness on task perceptions and  attitudes: A social information processing approach. Journal of Occupational Psychology, 58: 193-206.

Taylor, M. S., Tracy, K. B., Renard, M. K., Harrison, J. K., & Carroll, S. J. 1995. Due process in   performance appraisal: A quasi-experiment in procedural justice. Administrative Science            Quarterly, 40: 495-523.

Halpern David, Reville Patrick J., Grunewald Donald. (2008) Management and Legal Issues        Regarding Electronic Surveillance of Employees in the Workplace. Journal of Business           Ethics 80:175–180 _ Springer 2007 DOI 10.1007/s10551-007-9449-6 (pg 176)

Oxford Dictionaries. Retrieved on 10/20/2011 from:  

Electronic Communications Privacy Act, 18 USC 2510, et. Seq. Retrieved at 10/20/2011 from:   

Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)

Labor Code Chapter 557 Section 31-48b. Retrieved at 10/20/2011 from:   

State-by-state summaries. Retrieved at 10/20/2011 from:

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