Flashback Friday – Past ethikos Favorites: Ethical Considerations in Monitoring Employee Internet Usage

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Ethical Considerations in Monitoring Employee Internet Usage. 5-6 ethikos March/April 2014
by Stephanie Gallagher, JD
stephanie.gallagher@corporatecompliance.org

Internet monitoring in the workplace presents an interesting dilemma to both employers and employees. As I’m sure we are all well aware, especially if you work in Corporate America, many employees spend some portion of the workday using company resources, such as computers, telephone, and internet, for non-business related matters. While it is well established that employers have the legal right to monitor employee usage of such resources, this monitoring presents an ethical question. With competing interests at odds, how can an employer balance an employee’s expectation of privacy, while ensuring that employees are productive and refrain from inappropriate or illegal behavior?

With new technology arising every day, employers have ample opportunity to secretly monitor employee usage of internet resources. A software product, aptly named “LittleBrother,” provides employers with the ability to monitor an employee’s internet usage, and generate reports labeling the internet activity as “productive,” “unproductive,” or “neutral,” and provides a rating for each employee[1]. This is an easy way for an employer to track employees’ usage of company resources. In addition to programs such as LittleBrother, employers have cart blanche to search employee emails and hard drives, and it has been well established that, legally, employees do not have an expectation of privacy when it comes to company-owned resources[2].

A legal perspective

The new reality is that the workplace has become decentralized with the widespread adoption of technology and work-from-home policies. This is advantageous to the employer/employee relationship because it allows employees to be more efficient, and adhere less strictly to a specific time schedule. The downside to this phenomenon is the blurred line between work-related and non-work-related activities. Where does the employee’s expectation of privacy come into play? Does an employee even have an expectation of privacy? The law has long allowed employers to diminish their employees’ expectation of privacy, due in part to the fact that employees have very little power in terms of bargaining, and are generally subject to the employment-at-will doctrine[3]. The evolution of the legal precedent in this area leans in favor of the employer’s right to monitor, where the notice of monitoring of the resources has been clearly communicated to employees through internal policies, extinguishing the reasonable expectation of privacy[4].

Assuming a business has clearly communicated its internet privacy policy with employees, it can legally freely monitor the use of such company resources. At what point does this monitoring go too far? Is it even possible to go too far?

The employer’s perspective

There are many clear reasons why an employer would want to monitor an employee’s use of its internet resources. The first, and probably the most obvious, reason for an employer to monitor an employee is that the employer has an expectation that an employee will be productive at work, earning their salary, and contributing to the success of the business. Secondly, employers need to ensure that employees are not utilizing company resources for illegal or unethical conduct. Which brings us to the question; does this monitoring ever overstep ethical bounds? Ethically, an employer may determine that this monitoring is perfectly acceptable because it is ensuring that the employees are not abusing company resources, and are refraining from conducting unlawful conduct with the use of company property. If the employer has made a clear policy, specifically outlining an employee’s expectation of privacy, or lack thereof, an employer may determine that such monitoring has not crossed any ethical boundaries. But what about the employee’s perspective?

The employee’s perspective

As an employee, it is well established that there is no real expectation of privacy with respect to the use of company email, internet, and computer resources[5]. When presented with the question, most of us would probably agree that an employer has a right to monitor these resources, and to ensure that they are being used for business purposes, especially if there is a policy in place. But what if the scenario is a bit different? Before the technological boom, we only had pens and paper to correspond, or perhaps a typewriter. What if an employee drafted a personal letter, sealed it, and deposited it in the mailbox? Does an employer have a right to read the correspondence because it was drafted on company time, with company resources (the pen and paper)[6]? In this situation, I believe we might think differently. Most of us would likely find the act of the employer reading the employee’s letter an invasion of privacy, and unethical. So why does the opinion differ when the correspondence is electronic?

Another interesting conundrum arises when employees use company resources to conduct privileged communication, such as with an attorney. And what if an employee is conducting research about a medical issue, triggering HIPAA? Even if an employer has spelled out a policy for monitoring, this still raises the question of whether this monitoring is ethical.

What can be done to reconcile the competing interests?

Although employers are fully within their legal rights to monitor an employee’s use of electronic resources, there are many ethical considerations to take into account. In addition to the above discussion, monitoring of employee communications may decrease morale, and instill a sense of distrust. Employees may feel like they are being spied on, or feel like their privacy has been invaded. Conversely, employers have many legitimate reasons to monitor employee communications. Not only does it allow employers to monitor productivity, but it protects employers from liability if an employee is using the resources for unlawful or unethical conduct.

Given the fact that employers are legally allowed to monitor electronic resources, certain ethical considerations should be considered. A clear policy is an obvious necessity; however, perhaps an employer should only monitor select communications if they have reason to believe an employee may be engaging in some undesirable conduct. This leads the employer away from the “Big Brother” mentality, and would give employees the sense that they are trusted, at least somewhat. This can lead to increased morale, and, hopefully, increased productivity.

[1] Miriam Schulman:  “Little brother is watching you” Santa Clara University, Spring 1998.    http://bit.ly/1gHjWCZ
[2] Miriam Schulman:  “Little brother is watching you” Santa Clara University, Spring 1998.    http://bit.ly/1gHjWCZ
[3] Michael Z. Green, Against Employer Dumpster-Diving for Email, South Carolina Law Review, Winter 2012. http://bit.ly/1cOiOK8
[4] Daniel Harmon, Law Technology News, Lawyer’s PC, Nov. 2002.
[5] Michael Z. Green, Against Employer Dumpster-Diving for Email, South Carolina Law Review, Winter 2012. http://bit.ly/1cOiOK8
[6] Miriam Schulman:  “Little brother is watching you” Santa Clara University, Spring 1998.    http://bit.ly/1gHjWCZ

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2 COMMENTS

  1. Hello Stephanie

    My response to your article is to complete a Business Ethics assignment, so my reply will be detailed.

    Monitoring of employees has always been an ethical issue, which has increased with the introduction of electronic monitoring. Your article states an argument on the moral dilemma presented with electronic employee monitoring by employers and what can be done to help opposing interests of employees and employers. While this article does not provide appropriate strong evidence to support the argument, it does present good claims for the legal rights and ethical issue for employers regarding employee monitoring. I agree with some of your views on how to “reconcile the competing interest” however I would like to comment on three main areas from your article which are the productivity argument; the liability argument; and the privacy argument.

    I enjoyed your suggestions of ethically acceptable ways to deal with monitoring employee internet usage and I agree with the productivity argument you used. You specified productivity as the main expectation discussed in this article regarding the employer’s perspective for employee monitoring. Of course an employer can expect productivity and your blog discusses negative impacts of staff monitoring which “decrease morale, and instil a sense of distrust”. In my reading on this subject I was interested to find that “43% of employer’s store and review computer files” (American Management Association, 2014) of their staff, so with that percentage alone, it is apparent that employees must feel a loss of privacy. Also, does monitoring increase this productivity, or for example simply show 5 minutes of an employer’s time lost for personal internet use perhaps checking medical results that were only available during working hours. Does it show if the same person has worked several hours extra in their week outside of their normal hours and therefore 5 minutes is nothing in comparison. If statistics show 45% of monitoring is on “time spent at the keyboard” (American Management Association, 2014), does this allow for recording the breaks the employee is required to take (Yerby, 2013).

    The second expectation of employees not using the internet for illegal or unethical behaviour is a fair expectation justified by employers using the liability argument to protect their companies from being liable if an employee engages in this behaviour. My opinion on this is that the liability argument should be incorporated with the security argument and that employers should have good risk management with the internet by blocking websites and by having the security measures to control this, thereby reducing the opportunity (Dinglun, 2012).

    I personally do not agree with monitoring employees because I think it is an invasion of their privacy and it removes the relationship of trust within our organisations between the employers and the employees. Organisations in New Zealand and so many other countries have an Employment Relationship Act whose foundations are that “employment relationships must be built on mutual trust and confidence” (Ministry of Business, Innovation & Employment, 2015). This legislation was put into place because there was always such a power imbalance that favoured the employers’. So how could employees feel trusted when their every action will be monitored regarding their internet usage. This imbalance of power for employees brings me to my last point of comment about the privacy argument which can be viewed as a potential threat (Open Polytechnic, 2015).

    Employee monitoring presents issues regarding control theory and how an individual’s privacy is affected “by the amount of control we have over our own information” (Martin & Freeman, 2003). Your example about it being unethical to open a personal letter that was written during working hours was a good example of expectations of privacy. I believe that employees should have control of their information and that there should be trust and policies that ensure that employee information is kept safe from others also (Martin & Freeman, 2003). Another issue is the loss of control of privacy felt by employees even if they only suspect their employer is monitoring them (Martin & Freeman, 2003). The concern for the ability of employers to monitor them can make employees sick with stress or similar conditions (Martin & Freeman, 2003).

    Your claim is that provided employees are informed with an internet privacy policy that “employers are fully within their legal rights to monitor an employee’s” internet usage. My view on this is that new policies such as internet and email usage agreements are often emailed out to employees, with a request to the user to read and sign the policy as being understood. Many employees sign this without understanding what they are agreeing to, the terminology used means they can agree to different types of monitoring through software without knowing what it does (Martin & Freeman, 2003) and therefore exposes employees to easily being monitored. (Open Polytechnic, 2015) Unless the employees are given appropriate communication, training and the opportunity to ask questions, (Behaudin, 2014) then my opinion is that the clear policies are void of any moral value.

    Regarding employee monitoring a key consideration is that this is not a new concept; it is one that has been an area of both legal and ethical concern for several years. With the introduction of electronic changes there are simply different ideas and methods of employee monitoring, and these ideas are often hidden from or not understood by employees (Martin & Freeman, 2003). Your recommendation was in line with this idea because you stated “a clear policy is an obvious necessity; however, perhaps an employer should only monitor select communications”.

    In conclusion, I do believe that there should be clear policies, however, these must be written, explained and fully communicated to ensure that staff understand what the policy is on employee monitoring of internet usage. While the article’s claims as to why employers monitor the internet are correct, I do not believe that employers should invade the privacy because there is a large imbalance of power which favours the employer (Dinglun, 2012) and the employment relationship should account for trust.

    REFERENCE LIST

    American Management Association. (2014). The Latest on Workplace Monitoring and Surveillance, Retrieved 26 January, 2016 http://www.amanet.org/training/articles/The-Latest-on-Workplace-Monitoring-and-Surveillance.aspx

    Behaudin, G, M. (2014). The Journal of Applied Management and Entrepreneurship. Ethical Implications of Employee Monitoring: What Leaders Should Consider, Retrieved 24 January, 2016 (http://secure.business.nova.edu/JAME/articles/employee-monitoring.cfm

    Dinglun, T., (2012). Should Employers Monitor Employees, Retrieved 03 January, 2016 http://blog.nus.edu.sg/questionablecomputing/2012/11/19/should-employers-monitor-employees/

    Martin, K., & Freeman, E. (2003). Some problems with employee monitoring. Journal of Business Ethics, 43, 353–361.

    Ministry of Business, Innovation & Employment (December, 2015) Retrieved 6 February, 2016 from http://www.business.govt.nz/laws-and-regulations/employment-regulations/the-employment-relations-act-for-employers

    Open Polytechnic of New Zealand. (2015). Module 3. 71203 Business Ethics. Lower Hutt, NZ: Vanessa Scholes.

    Yerby, J. (2013). Online Journal of Applied Management. A Publication of the International Institute for Applied Knowledge Management. Legal and ethical issues of employee monitoring, 1 (2), 44-55. Retrieved 24 January, 2016 http://www.iiakm.org/ojakm/articles/2013/volume1_2/OJAKM_Volume1_2pp44-55.pdf

    • You raise some excellent points. Thank you for your thoughtful response to my piece – I really appreciate you taking the time to respond so thoroughly!

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