Corey Ciocchetti, Employee Monitoring: Emerging Technologies & Contemporary Issues

By privacylaw | May 17, 2013 at 10:28 pm

Comment by: Eileen Ridley

PLSC 2010

Workshop draft abstract:

This project focuses on employment law, modern technology and the monitoring of employees in the private workplace arena. Today, the vast majority of employers monitor some form of their employees’ e-mail, phone calls, voicemails, instant messages, Internet surfing, workplace activities or offsite, non work-related activities. United States law allows, and often approves, of such monitoring. Employers argue that such surveillance is necessary to: (1) avoid legal liability based on inappropriate activities (i.e., Internet gambling) at work and (2) increase employee effectiveness. Employees and privacy advocates, on the other hand, argue that monitoring has become excessively intrusive and that monitoring invades individual privacy, and thereby, decreases workplace morale. Tensions rise when excessive monitoring creates a work environment where employees are sneaking in “unapproved” activities during work hours. Unfortunately, the United States legal system is poorly equipped to deal with the advances in technology driving sophisticated employee monitoring. This article details the advanced technology being implemented and proposes a modified legal structure whereby the law limits the amount and type of monitoring granted to employers. The argument is made for a balanced approach that does not excessively hinder workplace efficiency but allows employees to feel more comfortable in the workplace.

Ariana R. Levinson, Reconsidering the Electronic Communications Privacy Act as a Source of Employee Privacy from Electronic Monitoring

By privacylaw | May 17, 2013 at 10:25 pm

Ariana R. Levinson, Reconsidering the Electronic Communications Privacy Act as a Source of Employee Privacy from Electronic Monitoring

Comment by: Eileen Ridley

PLSC 2010

Workshop draft abstract:

Scholars generally recognize that new technology has outpaced the law’s ability to protect employees’ privacy from electronic monitoring by employers. And numerous scholars have commented on the inadequacy of the Electronic Communications Privacy Act (ECPA), the federal law designed to insure privacy of electronic communications, as interpreted by the courts, to protect employees’ privacy from newer forms of electronic monitoring, such as of e-mail. Yet, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely.

This article, thus, takes a second look at the ECPA as a potential source of some comprehensive protection for employees from employer electronic monitoring. Several new decisions out of the Ninth Circuit, such as an appellate decision denying summary judgment to a company that contracted with an employer who read an employee’s text messages and a district court decision denying a motion to dismiss for monitoring of keystrokes to discover an employee’s personal e-mail password suggest that new employment trends, such as use of third-party networks, rather than employer networks could lead to greater protection under the act. They also suggest that increasing incidents of employers intentionally accessing clearly personal communications, sometimes those that would be otherwise attorney-client privileged, could lead to greater protection. Perhaps the reverse of the saying bad facts make bad law is also true.

Additionally, some of the bases upon which the ECPA has been held not to protect employee communications, such as the definition of interception and the exceptions for consent and for ordinary course of business have likely been differently interpreted by different courts. Some interpretations are more protective of employee privacy and more consistent with the intent of Congress to protect individual’s privacy from electronic monitoring.

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