The Eavesdropping Employer: A Twenty‐First Century Framework for Employee Monitoring

• Published date: 01 June 2011
• DOI: http://doi.org/10.1111/j.1744-1714.2011.01116.x
• Date: 01 June 2011

The Eavesdropping Employer: A

Twenty-First Century Framework

for Employee Monitoring

Corey A. Ciocchetti

n

INTRODUCTION

Employers and employees have a love–hate relationship with technology.

Both love the benefits of sophisticated hardware and software in a com-

petitive global marketplace. Employees hate that the same technology

tethers them to the workplace and records their electronic footprint. Em-

ployers hate the potential for liability, distraction, and lost productivity

when employees monopolize workplace technology for personal reasons.

This article analyzes the hate part of the equation.

Today, incessant distractions litter workplaces and entice workers to

stray from their duties.

1

Fifteen years ago, these types of distractions ex-

isted only in an employee’s imagination. Today, a wide range of sports,

news, games, and other entertainment is freely available from one’s office

desk. As enticing as these diversions can be, whenever employees access

them, it is likely that their employers will know about it. In fact, employees

should not be surprised when a boss comments about a failed personal

r2011 The Author

American Business Law Journal r2011 Academy of Legal Studies in Business

285

American Business Law Journal

Volume 48, Issue 2, 285–369, Summer 2011

n

Assistant Professor of Business Ethics and Legal Studies, Daniels College of Business, Uni-

versity of Denver; J.D., Duke University School of Law; M.A. (Religious Studies), University of

Denver. Thanks to the Daniels College of Business for the generous scholarship grant and

course release awarded to support the creation of this article. Many thanks as well to the

Academy of Legal Studies in Business for selecting this paper as the winner of the Holmes-

Cardozo Award for best conference paper at the 2010 International Meeting in Richmond,

Virginia.

1

See, e.g., BURST MEDIA,ONLINE INSIGHTS 2 (2007), available at http://www.burstmedia.com/pdfs/

research/2007_11_01.pdf (finding that over twenty-five percent of an employee’s work time is

spent online conducting personal tasks; eighteen- to twenty-four-year-old employees are

likely to spend over thirty-four percent of their work time online conducting personaltasksF

the highest percentage among all age groups surveyed).

relationship or even asks, ‘‘Why did you call in with the swine flu last

Friday and then e-mail pictures of your weekend excursion to twenty of

your friends?’’

These examples are not far-fetched. In fact, the majority of employers

monitor the electronic activities of their employees in some form or an-

other.

2

Most of this monitoring is perfectly legaland even prudent in today’s

employment arena. While employee monitoring remains a contentious is-

sue,

3

employers have good reasons for checking in on their employees’ ac-

tivities. Sexual or pornographic e-mails and Web pages, whether they

contain pictures or merely sexually explicit language, can form the basis

for a harassment lawsuit.

4

Excessive personal use of company broadband

capacity or e-mail accounts can lead to decreased productivity, storage

shortages, and slower network operations.

5

Failing to monitor is also likely

to allow rogue employees to steal trade secrets or send out confidential in-

formation in violationof various federal and state laws.

6

On the other hand,

employee monitoring pierces the veil of an individual’s privacy and can

2

See AM.MGMT.ASS’N&THE EPOLICY INST., 2007 ELECTRONIC MONITORING &SURVEILLANCE

SURVEY 4 (2008), available at http://www.plattgroupllc.com/jun08/2007ElectronicMonitoring

SurveillanceSurvey.pdf(surveying employer monitoring practices in various areas such as the

Internet, e-mail, computer usage, etc.).

3

See, e.g.,Privacy Guide,CASLON ANALYTICS, http://www.caslon.com.au/privacyguide22.htm (last

visited Sept. 23, 2010) (stating that surveillance ‘‘by public and private sector employers of the

activities of their workforce is both traditional and increasingly contentious, as employees

question surveillance that may be systematic, invisible and often non-consensual’’).

4

See, e.g., Blakey v. Cont’l Airlines Inc., 751 A.2d 538, 543–44 (N.J. 2000) (discussing the facts

of a sexual harassment case filed by a female airline pilot claiming, among other things, that

her coworkers posted sexually explicit comments about her on Continental Airlines’ online

bulletin board).

5

See, e.g., Lisa Scott & Ross Tate,Monitoring Internet UsageFSpring 2010,ASS’NOFLOCAL GOV’T

AUDITORS (2010), http://www.governmentauditors.org/index.php?option=com_content&view=

article&catid=47:accounts&id=594:monitoring-internet-usage-spring-2010&Itemid=123

(reiterating that employee Internet use for personal reasons can cause ‘‘[b]andwidth and

storage shortages [sic] [particularly] from peer to-peer [sic] file sharing and audio/video

streaming.’’).

6

See, e.g., Jared A. Favole, Ex-Bristol-Myers Employee Charged with Stealing Trade Secrets,BARCLAYS

LATITUDE CLUB (Feb. 3, 2010), http://www.barclays.com/latitudeclub/er_gr_global_news_arti

cle.html?ID_NEWS=133949142 (discussing accusations against a Bristol Myers’ technical

operations associate for allegedly stealing company trade secrets in orderto form a competing

company in India); Elinor Mills, Microsoft Suit Alleges Ex-Worker Stole Trade Secrets,CNET NEWS

(Jan. 3, 2009), http://news.cnet.com/8301-10805_3-10153616-75.html (stating that an

ex-employee ‘‘allegedly downloaded confidential documents onto his company-issued

286 Vol. 48 / American Business Law Journal

decrease morale.

7

Excessive monitoring will merely cause employees to sneak

around instead of following the rules. E-mails will be sent using employees’

personal Hotmail or Yahoo accounts instead of using the company software.

Text messages and phone calls will be made on personal cell phones instead

of company lines. Employees will check sports scores and stock markets from

their personal devices (PDAs) instead of using their work computers.

With this in mind, employers must walk a fine line between shielding

the enterprise and protecting employee privacy. Others have suggested

that a workable monitoring regime must allow employers to use technol-

laptop .. . and then allegedly used a file-wiping program and a ‘defrag’ utility designed to

overwrite deleted files in order to hide the tracks.’’).

7

See, e.g., Mia Shopis, Employee Monitoring: Is Big Brother a Bad Idea?,SEARCHSECURITY.COM (Dec.

9, 2003), http://searchsecurity.techtarget.com/news/interview/0,289202,sid14_gci940369,00.

html (quoting an expert in electronic monitoring who stated that ‘‘[e]mployee monitoring

is a bad idea .. . when it’s used for Big Brother and micromanagement purposes. Organiza-

tions would be better off not doing it if they’re going to scrutinize their employees’ every

move. If it creates a morale problem (and it will if it’s not handled properly) all of its value is

diminished.’’). More generally, employee monitoring can have the following negative effects:

1. An employee may suffer loss of self-esteem if she interprets the monitoring to indicate

a lack of trust in her.

2. Employees may alsoquestion the fairnessof the monitoring:are the right variables being

measured;are the wrong variables beingmeasured; is the measurementaccurate? Fair-

ness is also suspect considering that women and minorities receive a disproportionate

amount of monitoring, as they make up a large percentage of the clerical ranks.

3. Worse, monitoring may be abused by the employer to intimidate and punish

employees rather than help them improve.

4. Abuse may alsotake the form of voyeurism,union-busting,ferreting out whistleblowers,

and creating pretenses to firemembers of protected employee groups.

5. The accumulationof the above effects‘‘takes its toll on workers and companies in terms

of stress, fatigue, apprehension, motivation, morale, and trust; this results in increased

absenteeism, turnover, poorer management, and lower productivity, not to mention

higher health-care costs.’’ Thus, monitoring mayspoil the workplace environment, and

it can havea detrimental effecton productivity. Productivity is harmedby the mentaland

physicalmanifestationsof stress: depressionand anxiety, including‘‘wrist, arm,shoulder,

neck, and back problems.’’ It is estimated that employee stress costs employers fifty to

seventy-five billion dollars annually.

6. Monitoring can also encourage employees to act in a counterproductive manner in an

attempt to ‘‘game’’ the system.

7. Some employees are concerned that electronic monitoring will allow employers to in-

crease the pace of work, creating sweatshops, not unlike those before the advent of

progressive labor laws.

8. Unconditionalacceptance of electronic monitoring alsothreatens the futureof privacy in

the workplace.

Jay P. Kesan, Cyber-Working or Cyber-Shirking?: A FirstPrinciples Examination of Electronic Privacy in

the Workplace,54F

LA.L.REV.289, 319–20 (2002) (internal citations omitted).

2011 / The Eavesdropping Employer 287