The Need for Workplace Privacy Protection

-- By AdithyaMani - 22 Dec 2012

Introduction

Worker privacy is in trouble. Some states have made laws to protect employers from reaching into workers’ Facebook accounts. However, the increase in communication through the web has resulted in an increase in how much about an employee an employer can find out. Employers can look through worker emails. This is concerning because workers’ bargaining power has declined as Internet dependence has increased. If the law is not changed, then employees will not be able to fully express themselves at the workplace. Therefore the law should be changed, through changes in national or state legislation, to better address workplace privacy issues.

Why Privacy in the Workplace Matters

Privacy in the workplace is not a minor issue and it is something that matters because a person’s work involves their very livelihood- their ability to support themselves and their families. As an example of how important this issue is, the ACLU actually receives more complaints about privacy in the workplace than any other issue. Worker privacy is an issue because it involves what an employer can use to get rid of an employee- maybe private emails showing that a worker has revealed confidential information to unauthorized individuals or an email stating that an employee hates their boss. However, worker privacy is also an issue because it involves what an employee can use to protect themselves against discrimination- an employer deleting someone’s emails with an attorney about a potential discrimination lawsuit. Thus, employee privacy is important because it is essential to an employees ability to both retain their job and also retain their rights to equality in the workplace. Worker privacy is also an issue that everyone should learn about because workers have minimal bargaining power against employers to achieve collective bargaining solutions. People might have mixed opinions about unions but unions result in better lives for workers. Wages of employees covered by a collective bargaining contract are 13.6% higher than non-union bargained wages, unionized workers are 28.2% more likely to be covered by employer-provided health insurance, and unionized workers are 53.9% more likely to have employer-provided pensions. Unfortunately, the percentage of workers represented by unions has declined in the last 40 years- from 26.7% in 1973 to 13.1% in 2011. This shows that if workers were as powerful 40 years ago as they are now, perhaps workplace privacy might not be as big of an issue since unions could bargain with employers for more workplace privacy protection. Since this is not the case, the law must step in to provide workers with appropriate privacy protection.

Counter-argument

One might counter the notion that workplace privacy is an important concern by stating the importance of being productive and avoiding personal activities at work. It is true that employers do not pay people to talk with their friends and family or pay their bills at work. In an economy with unemployment rates hovering around 10%, employees are so happy to have jobs that they might be happy even if they have to give up personal time at work. However, employers have much more influence on the lives of workers than just with what happens at work. Social security, pensions, and healthcare are all funded largely by employers. Therefore, when a person retires or gets sick, the employer is affecting their life directly. It would then seem arbitrary to have the employer affect the worker’s personal life in one instance but not another. Additionally, most employers offer un-compensated lunch breaks or meal breaks for around 30 minutes. During these breaks, workers might use the internet to engage in personal activities and employers usually allow this. Because employers allow workers to engage in personal activities at work, the counter-argument that workplace privacy is not a concern because workers should avoid personal matters at work is moot. A better counter might be that employers should be able to monitor what workers do online because they should not be engaging in personal activities during they are compensated for doing work. For a worker who works in a cubicle, a supervisor can monitor whether they are sleeping or actually doing work- why shouldn’t a worker be able to monitor whether they are actually doing work or online shopping? However, if preventing workers from fooling around while they are paid is the prime concern for an employer, they can use webpage blockers if they do not trust their workers. For the issue of workers accessing their emails using their work computer, this is similar to a worker using a letter opener to read their personal mail. A worker would not be able to read a person’s physical personal mail because that person used an office letter opener to open their letter. Therefore, an employer should not be able to read a worker’s email because they used an employer’s tool, an office computer, in reading their personal email.

Current Law and its Shortcomings

Laws should be changed to better protect worker privacy because the current law is insufficient in accomplishing this. In Thygeson v. U.S. Bancorp, a federal district court in Oregon held that the plaintiff did not have a reasonable expectation of privacy for personal folders stored on or websites visited on a company computer because the company’s policies stated that workers would not be entitled to such privacy protection. This court decision suggests that employers will simply be able to dismiss claims of invasion of privacy by pointing to policies stating that the employer is allowed access to anything the worker does on a company computer. This “reasonable expectation” of the worker standard is circular because the expectation is essentially what the company allows. Alternatively, the expectation is what the court says is a reasonable expectation. As a result, workers can rely on neither their own employers nor the courts to give them privacy protection. Therefore, the law must increase the level of privacy protection for workers.

Conclusion

Because workers have such little bargaining power and cannot rely on courts to protect them, legislation must be passed to give workers privacy protection in the workplace.

Some links to relevant sources would be good. They should be included in the body of the text, not added as citations I have to look for at the bottom, as in the last essay. A revised version, if any, should be put on top of this one, not appended at the bottom, which makes the modifications harder to see.

Substantively, this draft leaves important questions unanswered. Why is privacy in the workplace related to freedom of expression? Is the employee entitled to free expression off the job, or to the use of the employer's facilities (including digital facilities) for free expression on the job? If the latter, why is that true of digital facilities when it isn't true of other workplace facilities, like telephones, copiers, or the cafeteria? Why is calling for legislation relevant when it is evident that no such legislation is going to happen under present political conditions? By what means is a political coalition to pass such legislation going to be built?

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