Information technology has rapidly subverted individuals’ expectations or rights to workplace privacy. Over the past ten years, workplace related privacy lawsuits have increased enormously as the collection and use of personal information has burgeoned, and this trend is likely to continue. There may be valid reasons to gather information on employees, but the line between privacy and probity is often crossed, sometimes without the knowledge or consent of the employee. What then is the balance between the unfettered use of technology as an information gathering tool versus the right to individual privacy in the modern workplace? 

When employees surf the Internet, an electronic trail is created with a record of each individual’s use of Web sites, news groups, and e-mails. All interactions are recorded and copies of all pictures can be retrieved. Sometimes employees feel their privacy has been violated when they discover that their every move on the Internet has been observed or recorded, and this can have a chilling effect on morale. A record of sites visited by employees may seem like a useful tool to an aggressive employer intent on limiting excessive or inappropriate use of the Internet on company time and equipment, but maintaining such information can backfire. In one case, evidence of repeated employee visits to sexually explicit web sites was used to show the employer allowed a sexually permissive work environment. Rather than an untrusting “big brother” approach to Internet use, the employer should consider using filtering software that denies access to sites containing offensive images or are not work related. In any case, it is vital that the employee’s expectation of privacy be considered and informed. Last year, a federal court found that an employee did not have a reasonable expectation of privacy with regard to any Internet activity at work, because the employer had a policy that clearly stated that the employer would monitor Internet use. The court reasoned the employee’s rights were not violated when the employer searched his computer workstation and found illegal pornographic pictures. This case demonstrates the importance of drafting, promulgating, and uniformly enforcing a clear policy on Internet use. If the employer intends to police what employees are viewing on the Internet, the policy must explicitly state that the employer has the right to monitor all computer and Internet use and that the employee has no expectation of privacy whatsoever with regard to communications at work. 

The interplay of technology and individual privacy is reflected in a recent Pennsylvania case where the court found that terminating an employee for inappropriate and unprofessional comments over the company’s e-mail system constituted proper grounds for dismissal. The employee had a series of e-mail exchanges with his supervisor containing offensive references and threats relating to the company’s sales managers. The supervisor forwarded the material to company executives, who then read all of the employee’s e-mail messages and promptly fired him. He sued, alleging that the interception of his e-mail had violated his right to privacy, but the court disagreed. It ruled that the employee had no reasonable expectation of privacy in e-mail communications voluntarily made to a supervisor over a company wide e-mail system, regardless of any assurances from the employer that e-mail messages would remain confidential and privileged. The company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighed any privacy interest the employee may have had in those comments. 

Regardless of this court’s decision, it would not be prudent for employers to surveil or record employee communications without advance notice and consent of all parties involved, together with a strong and legitimate business purpose for such activity. The public policy of our country reflects an overall societal orientation against surveillance and recording activities except under color or law in police activity. Furthermore, employers who monitor employee communications better ensure that such devices do not inadvertently pick up non-employees. If employers intend to look at what their employees are viewing on the Internet, they should say so, but it should be remembered that exerted force produces a like response.

Tony Belak