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Privacy Rights in the Digital Age

Workplace, privacy in the

by Charles E. MacLean

Is far more limited in the digital age, because interception, audio-recording, video-recording, and other electronic surveillance is easy and inexpensive for employers to conduct, and statutory and judicial protections have been glacially slow to arrive. As Lewis Maltby wrote in 2013, “The battle for workplace privacy is over; privacy lost … no employee has ever won a case against his or her employer for computer monitoring.”

Imagine all the ways employers can spy on their employees today:

  • Intercept and read emails and text messages sent and received on company-provided computers and cellular telephones – both at work and while away from work – and even when those emails are sent to or from the employees' private email accounts, so long as the emails were sent or received via company computers

  • Track websites visited on company-provided computers – both at work and while away from the workplace

  • Install security cameras in public areas in the workplace

  • Search employees when leaving work with notice and given particular missing items

  • Search work lockers (with notice and proper justification)

  • Search work desks and office spaces with adequate work-related justification

  • Listen in on incoming and outgoing telephone calls to and from work telephones

  • Test employees for drugs and alcohol pre-employment and post-employment in safety-sensitive jobs and with notice

  • Require employees to submit to medical exams, psychological exams, personality tests, and polygraphs with notice and adequate work-related need

  • Use key-logging software to capture employee use of work computers

  • Use keycards, security fobs, thumb or iris scans, or other security approaches to track employees' comings and goings from the place of employment and even from room-to-room or wing-to-wing within the worksite

  • Use GPS techniques to track the physical location of company vehicles in real time or historically

Moreover, this is a very abbreviated list. Consider the erosion of workplace privacy when the workplace involves cyber-commuting or work-from-home arrangements!

All of this workplace privacy erosion can be tracked to two realities: (1) technology has enabled electronic and surveillance intrusions unimaginable just a short time ago; and (2) legislatures and courts have been slow to respond with appropriate workplace privacy protections.

Clearly, workplace surveillance of employee's computer use has exploded. According to a 2007 American Management Association study, updated through 2014, among all employers: 66% monitor employees' internet activity; 65% block access to specified websites; 45% track keystrokes, content, and time spent on work Computers; 43% store and later review computer files; 10% monitor social networking site activity; 48% use video-surveillance to combat theft, sabotage, and violence; 7% use video-surveillance to monitor employee productivity; 8% use GPS to track locations of company vehicles; 3% use GPS to track physical location of work Cell phones; 52% use technology to track employee location within work buildings; 2% use fingerprint scans; and less than 1% use facial recognition or iris scan equipment. These percentages will only increase as time passes.

Nor is the erosion of workplace privacy simply a matter of inconvenience for those surveilled or titillation for those conducting the surveillance. Fully 28% of employers have fired one or more workers for email misuse. Moreover, 30% of employers have fired one or more workers for internet misuse.

At first blush, one might think that governmental employers, subject as they are to the Fourth Amendment and its limits on warrantless searches, would be, if anything, even more constrained in their surveillance of employees' computer and cell phone activity than private employers. Not so fast. The leading United States Supreme Court decision on workplace privacy, City of Ontario v. Quon, 560 U.S. 746, was decided in 2010. In Quon, the employee, Jeff Quon, was a police officer for the City of Ontario, California. The police department had issued Quon and other police officers alphanumeric pagers that were capable of sending text messages. Soon, Officer Quon went over the text message limit, so city officials sought the text message transcripts from the pager service provider to ascertain whether the texts Officer Quon had sent were all work-related. Those transcripts revealed that many of Officer Quon's texts were personal, and some were sexually explicit. After that, Officer Quon was disciplined for violating police department rules regarding permissible uses for department-issued equipment. Those rules had also notified Quon in writing that pager activity could be tracked and intercepted. The police chief later informed Quon that his texts would not be audited in Quon paid the cost for any texts beyond the maximum permissible number of texts. Officer Quon sued the police department and others for violating his Fourth Amendment right to be free from unreasonable and warrantless searches and seizures by the government – his employer, the City of Ontario.

In its decision, the Supreme Court rejected Quon's Fourth Amendment claim, but in that opinion, the Supreme Court also held, Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior … many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency … [and] the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications …. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.

That is precisely the issue. Technology in the workplace and employers' abilities to monitor employees' use of that technology is growing rapidly, dynamically changing the way American companies conduct business, and giving companies a powerful tool they can use to discipline and terminate employees misusing company telephones, computers, and other electronic equipment. Squared off against that technological juggernaut is a legislative process and court system that move at a snail's pace, unable to keep up. The time has come for legislatures and courts to stand up and be counted. Just because employers have the ability to monitor and intercept employees' electronic communication and discipline or terminate them for it, does not mean those employers have the right to do so. Principled legislation and court rulings can restore the proper balance of workplace privacy and employees' rights.

Further Reading

1 

Alderman, Ellen, and Caroline Kennedy. The Right to Privacy. New York: Knopf, 1995.

2 

Espejo, Roman. Privacy. Detroit: Greenhaven Press, 2011.

3 

Hudson, David L. The Right to Privacy. New York: Chelsea House, 2010.

4 

Jasper, Margaret C. Employee Rights in the Workplace. 2nd ed. Dobbs Ferry, N.Y.: Oceana Publications, 2003.

5 

Kennedy, Charles H. The Business Privacy Law Handbook. Boston: Artech House, 2008.

6 

Lane, Frederick S. The Naked Employee How Technology Is Compromising Workplace Privacy. New York: AMACOM, 2003.

7 

Nouwt, Sjaak. Reasonable Expectations of Privacy?: Eleven Country Reports on Camera Surveillance and Workplace Privacy. The Hague: T.M.C. Asser Press, 2005.

8 

Stanton, Jeffrey M., and Kathryn R. Stam. The Visible Employee Using Workplace Monitoring and Surveillance to Protect Information Assets--without Compromising Employee Privacy or Trust. Medford, N.J.: Information Today, 2006.

See also: Privacy Laws, Federal; Fourth Amendment to the U.S. Constitution; Smartphones

Citation Types

Type
Format
MLA 9th
MacLean, Charles E. "Workplace, Privacy In The." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0232.
APA 7th
MacLean, C. E. (2016). Workplace, privacy in the. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
MacLean, Charles E. "Workplace, Privacy In The." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed September 17, 2025. online.salempress.com.