Workers' Rights

Employees whose jobs involve computers, telephones, and other communications equipment are guaranteed few rights to privacy while at work. The Electronic Communications Privacy Act of 1986 (ECPA), which prohibits the intentional interception of electronic communications, has a loophole that allows employers to monitor their workers while on the job. In Fraser v. Nationwide Mutual Insurance Co. (3rd Cir. 2003), the court ruled that a company is permitted to review e-mail stored on its own computers. In the court's opinion, the ECPA outlawed interception of communications, but stored e-mails were exempt and could be legally reviewed by employers. According to the Privacy Rights Clearinghouse in "Fact Sheet 18: Privacy in Cyberspace" (September 2005), "If the e-mail system is owned by an employer, the employer may inspect the contents of employee e-mail on the system. Therefore, any e-mail sent from a business location is probably not private."

In fact, according to the American Management Association and the ePolicy Institute in 2005 Electronic Monitoring & Surveillance Survey (http://www.amanet.org/press/amanews/ems05.htm), many companies are now monitoring, recording, and videotaping their employees. Of the 526 companies that participated in the survey, more than one-quarter (26%) had fired employees for misusing the Internet at work, and one-quarter (25%) had fired employees specifically for misusing e-mail. A full 76% monitor employees' Web site connections, and 65% of the companies reported using software to block inappropriate sites. Half of the companies have systems in place to store employees' computer files for subsequent review. Fifty-five percent retain and review e-mail messages. As of 2005 more than four out of five employers had created policies that limited personal e-mail use (84%) and personal Internet use (81%) at work. Some companies had devised additional policies that pertained to instant messenger use (42%), the operation of personal Web sites on company time (34%), and personal postings on corporate blogs (23%) or personal blogs (20%) on company time.

Compared with the rates of surveillance for Internet use, companies monitored employees' phone use to a much lesser extent. Only 6% of companies in the 2005 Electronic Monitoring & Surveillance Survey confirmed that they had fired employees for misusing the telephone, although 19% recorded all calls made by employees in certain job categories, and 3% recorded all employees' phone conversations. Few companies (15%) had a practice of recording employee voice mail messages, and even fewer monitored employees by using global positioning systems to locate company vehicles (8%) or by videotaping them on the job (6%). As of 2006, with few federal or state statutes addressing worker privacy, many companies were adopting policies that informed workers their communications and on-the-job activities would be monitored and that they should have no expectation of privacy while at work.