HRCU 630 EmployeeSurveillance paper, Feldman

Running head: EMPLOYEE SURVEILLANCE 1

Employee Surveillance

Joseph Feldman

Brandman University

Conflict & Negotiation

HRCU 630

April 3, 2015

EMPLOYEE SURVEILLANCE 2

Abstract

Workforce surveillance is an issue that causes conflict between employers and

employees. Case law tends to support employers rights to perform various types of surveillance

on its employees. This paper will identify and discuss why employers should have the right in

conducting surveillance on its employees through the use of real world examples. Part of this

paper will also incorporate negotiation and conflict theories that corporate management may use

in diffusing the problems that arise from employee surveillance. Two negotiation skills that will

be discussed includes negotiating rationale and the use of an effective system which places an

emphasis on interests over rights and power. Other aspects that will discussed in this paper

includes how a manager can use ethics and persuasion when handling employee workforce

surveillance issues. Transparency with employees is essential in today’s workforce environment

as many employees may first learn that their actions (e.g. email accounts) are being monitored by

their employer during an initial performance evaluation.


Employee Surveillance

Introduction

Employers have an overwhelming legal right to perform employee surveillance. This

paper will demonstrate why employers need to monitor employees. Part of the paper discusses

how employees wasted time during business hours has an estimated cost of $750 billion. Other

aspects that are explored include positive and negative effects of workplace surveillance. A few

positive effects include increase productivity and improved customer service. A company may

be able to mitigate employees᾽ negative perceptions of workplace surveillance by using the six

channels of persuasion.

Employer Surveillance Laws

Employers’ surveillance in the workplace has caused an increasing friction between

employers and its employees. In general, case law tends to support employers rights in using

various types of surveillance in the workplace. Companies are in a position of power as

regulations and case law continues to strengthen their ability to monitor employees. According to

Cox, Goette, & Young (2005) “one of the first and most substantial pieces of legislation relating

to electronic communication and privacy is The Electronic Communications Privacy Act

(EPCA) of 1986” (p. 59). The EPCA outlines three major areas of when an employer has the

legal right to monitor its employees. Under EPCA an employer may use surveillance “[i]f done

in the ordinary course of business, if there is consent from one party, and when an employer is

providing a wire or electronic communications service (e.g., email, voicemail) it may retrieve

information maintained on that person’s system in order to protect the employer’s property

rights” (Cox, Goette, & Young, p. 59). A few important subsequent rulings that have further


defined business rights in performing employee monitoring include Smyth v The Pillsbury

Company (1996) and Bourke v Nissan Motor Corporation (1993).

In Smyth v The Pillsbury Company (1996) “the company had issued assurances to

employees that email communications would be confidential, and would not be intercepted or

used as grounds for termination or reprimand” (p. 59). An employee had corresponded with his

supervisor via email, and Pillsbury decided to intercept and terminate the employee “for

transmitting inappropriate and unprofessional comments over the e-mail system” (p. 59). The

significance of this case is the court upheld the employee termination as it reasoned that

employees have “no reasonable expectation of privacy” (p. 59). In Bourke v Nissan Motor

Corporation (1993) a California court upheld two employees’ terminations as the court “ruled

the company had a right to read the email because it owned and operated the computer

equipment” (p. 59). A Nissan supervisor had randomly chosen and read one of Bourke’s emails

that turned out be personal and not business related. The email was deemed inappropriate and

Nissan decided to read Bourke’s emails. Bourke had made inappropriate comments about his

supervisor. The significance of this case is that it tested and upheld the EPCA of 1986.

There are different scenarios that may test the employee’s right to privacy. In a more

recent case, United States v. Hamilton (2012), Hamilton argued that incriminating email

communication between his wife and himself (sent from a company computer) was protected

under marital privilege. The Fourth Circuit of Appeals disagreed and found in favor of the U.S.

government. The Fourth Circuit “held that because Hamilton did not take any steps to protect the

emails even though he was, through the workplace use policy, on notice that the emails were

subject to search, he had waived any marital communications privilege” (Epic, 2015, para 1).


This was an important ruling as it further demonstrates a company’s authority in retaining

electronic information.

A Need for Monitoring

According to the American Management Association and The ePolicy Institute’s “2007

Electronic Monitoring & Surveillance Survey” companies have terminated employees through

their monitoring efforts in four major areas that includes (1) telephone and voicemail (2) internet

related (3) video surveillance and (4) global positioning systems (GPS) (American Management

Association, 2005, p. 1). Some employees may have a strong resistance to employers monitoring

their actions in the workplace. According to Bradley “some employees who have fought against

Internet monitoring in the workplace have tried to use the Fourth Amendment of the U.S.

Constitution to support their case” (Burks, n.d., para 4). Opponents of workplace monitoring

argue that it causes “the loss of respect and trust for the employer” (Cox, Goette, & Young, p.

60). Opponents also believe that monitoring can cause a “hostile environment, harassing

environment, and decay in a positive work culture” (Cox, Goette, & Young, p. 60). According to

Cox, Goette, & Young (2005) workplace surveillance negatively effects businesses because it

causes lower productivity and increased employee turnover (p. 62). Burks argues “the ethical

challenge that companies face involves protecting their interests through Internet monitoring

while ensuring they don't go so far that employees lose all sense of privacy in the workplace”

(para 2). A 2005 Workplace Privacy Poll of which 520 employees and 323 management

representatives were polled illustrates a resistance to employee monitoring (Poull & Lindback,

n.d., para 8). The following chart represents four areas of employee surveillance found within the

2005 Workplace Privacy Poll (Poull & Lindback, para 8):


Proponents of monitoring argue that the practice helps “employees maintain efficient and

productive work habits, which should boost efficiency, increase productivity and improve

customer service” (Cox, Goette, & Young, p. 60). An additional benefit is that helps companies

to secure sensitive company information. Such information may include “[t]rade secrets,

intellectual property, and customer, employee, and financial data” (Cox, Goette, & Young, p.

60). The 2007 Electronic Monitoring & Surveillance Survey reveals the following data

(American Management Association, para 1):


Is securing data a legitimate concern? The answer is “yes.” Nancy Flynn, executive

director of The ePolicy Institute and author of The ePolicy Handbook states “24% of employers

have had e-mail subpoenaed by courts and regulators and another 15% have battled workplace

lawsuits triggered by employee e-mail” (American Management Association, p. 1). Flynn argues

that emails become electronically stored business records and that these are the “[e]lectronic

equivalent of DNA evidence” (American Management Association, p. 1).

Work productivity is a major problem that employers encounter with the rise of

employees using the internet for personal reasons. A 2012 survey conducted by Salary.com and

AOL.com claims that “the average American employee wastes more than two hours each

workday, costing employers more than $750 billion annually” (Scuderi, 2012, para 1). This

indicates that businesses are suffering a huge a loss of worker productivity. The following table

lists the top five time-wasting activities that were reported in the 2012 Salary.com and AOL.com

survey (Scuderi, para 5):

A 2014 Salary.com survey that polled 750 workers shows 89 percent of employees waste

time at work every day (Gouveia, 2014, para 5). What may be extremely concerning is that 10


percent of the employees admitted to spending three or more hours per day wasting time on non-

work related activities (Gouveia, 2014, para 4). When analyzing the data it is alarming because

the typical worker’s day consists of an eight hour shift.

Employers have been asked in polls if they believe employees should have access to

private time when working. A 2003 Vault.com survey shows “more than 82 percent of

employers indicated that it was appropriate for employees to view nonwork-related Web sites,

and 58 percent of these opined that it was permissible for employees to do so between 15 and 30

minutes per day” (Muhl, 2003, p. 37). There may be a few changes in the workplace since the

2003 survey. One change is employee demographics as more Millennials are in the workforce.

The second change is an expansion and popularity of social media sites (e.g. Tweeter). The issue

may not be the fact that employees are wasting time, but how much time (in hours) that they are

wasting.

Ethics and Procedure

Manny Avramidis, senior vice president of global human resources for AMA cites how

“the majority are doing a good job of alerting employees when they are being watched”

(American Management Association, p. 1). Avramidis further states “fully 83% inform workers

that the company is monitoring content, keystrokes and time spent at the keyboard; 84% let

employees know the company reviews computer activity; and 71% alert employees to e-mail

monitoring” (American Management Association, p. 1). Despite these findings, this paper has

demonstrated that workplace surveillance is not 100 percent effective as companies continue to

lose hundreds of billions of dollars per year from employees wasting time. One of the major

problems is that employees may not fully understand their companies’ policies. Avramidis

believes that companies “need to do more than hand over a written policy” (American


Management Association, p. 1). Part of what Avramidis recommends is for companies to “(1)

educate employees on company expectations and (2) offer training on an annual basis”

(American Management Association, p. 1).

Negotiation

This paper has demonstrated that employers are in power and control the types of

surveillance in the workplace. It appears that with small exceptions (e.g. videotaping in secured

locations such as bathrooms) businesses have the legal right to monitor their employers. The

balance of securing a business interest with employees’ privacy is an issue that needs further

work to become effective. One of the factors that may be considered is motive. Companies that

give employees laptops, cellular phones, and vehicles with GPS need to consider whether they

are given with the intent of surveillance.

It appears that companies who notify their employees of corporate monitoring can benefit

by using persuasion techniques. The six channels of persuasion as defined in Lewicki, Barry, and

Saunders᾽ Negotiation Readings, Exercises, and Cases text could help to resolve surveillance

conflicts between employers and employees. The following illustrates the six channels of

persuasion (Lewicki, Barry, and Saunders, p. 227):

Interest based persuasion

Authority

Politics

Rationality

Inspiration and Emotion

Relationship

An employer can tell employees that they understand and approve of employees using

some part of the day to do non-work activities. As previously stated, a 2003 Vault.com survey

shows that over eighty percent of employers approved of this type of activity. A manager may


even be able to collect data showing that employees who spend a limited amount of time versus

no time on personal matters while working benefit from less stress and create higher levels of

productivity. This interest-based persuasion also gives the other side validated permission in

performing non-working activities. In addition, showing an understanding of employees needs

may intersect with relationship persuasion as employees feel a stronger bond with their

employer.

According to Lewicki, Barry, and Saunders “[e]ffective appeals using authority are

almost always accompanied by independent justifications and explanations to help persuade that

audience that the exercise of authority is legitimate and consistent with the audience’s core

interests under the particular circumstances” (p. 228). A company may be able to use authority

persuasion by educating employees on the need for monitoring employees. An attorney may be

used to explain the legal consequences of an employee leaking sensitive corporate information

and how courts subpoena business email records. This type of persuasion may be more effective

in person than a written employee handbook because the employee may overlook it in a written

form.

Rationality persuasion is a third tool that may be effective in changing employees’ habits

and attitudes of employee surveillance. According to Lewicki, Barry, & Saunders “rationality-

based persuasion [is] trying to influence someone’s attitudes, beliefs, or actions by offering

reasons and/or evidence to justify a proposal on its merits” (p. 230). A business may be able to

verbally explain to its employees facts and statistics. One area of discussion can involve how

excessive personal internet usage costs the business revenues and how this may lead to lower

increases of salary and bonuses. Another discussion may involve how employees who talk

negatively about their bosses effects the business itself. In other words this type of behavior has


broader implications than just the negative effects between the employee and manager. A

manager who finds out that an employee has spoken negatively about him on a social website or

email may wind up firing that employee. This in turn leads to the negative effect of additional

costs of training a new employee.

These tools may lead to employees having a stronger understanding of why employers

are using surveillance. This may create a higher level of trust between the two parties. According

to Lewicki, Barry, and Saunders “if we are treated with respect and cooperation, we tend to

respond with respect cooperation…A cooperate interaction often initiates a virtuous cycle in

which cooperation sustains itself, while a hostile interaction tends to perpetuate a vicious cycle

of contention and suspicion” (p. 273).

Conclusion

A strong persuasive argument has been made in supporting the need for workplace

surveillance. In 2012 it was estimated that employee wasted time cost businesses a total of $750

billion dollars (Scuderi, para 1). Despite businesses increasing their surveillance efforts, it

appears that this problem is continuous and growing. Employees on average waste two hours per

day on various personal activities that includes internet surfing , emailing, and spending time on

social media websites. One possible solution that has been offered is for employers to use the six

channels of persuasion. Employers may be able to make a connection with their employees by

explaining how employee surveillance helps businesses and how this in turn may have a positive

effect on employees (e.g. higher wages). In addition, employees may be more receptive to

employee monitoring as they learn how their electronic footprint plays a role in the legal system

and other areas.


References

American Management Association (2014, November 17). The latest on workplace monitoring

and surveillance. Retrieved from http://www.amanet.org/training/articles/The-Latest-on-

Workplace-Monitoring-and-Surveillance.aspx

Ball, K. S. (2014, January 20). The harms of electronic surveillance in the workplace. Retrieved

from http://www.pen.org/harms-electronic-surveillance-workplace

Burks, F. (n.d.). Ethical issues & employer monitoring internet usage. Retrieved from

http://smallbusiness.chron.com/ethical-issues-employer-monitoring-internet-usage-

12617.html

Cox, S., Goette, T. & Young, D. (2005). Workplace surveillance and employee privacy:

Implementing an effective computer use policy. Retrieved from http://www.iima.org/CIIMA/

CIIMA%205.2%2057%20Cox-6.pdf

Epic (2015). United States v. Hamilton. Retrieved from https://epic.org/amicus/hamilton/

Gouveia, A. (2014, March 18). 2014 wasting time at work survey. Retrieved from

http://www.chron.com/jobs/salary/article/2014-Wasting-Time-at-Work-Survey-5347458.php

Lewicki, R. J., Barry, B. & Saunders, D. M. (2015). Negotiation readings, exercises, and cases

(7th ed.). New York, N.Y: McGraw- Hill Education.


Muhl, C. J. (2003, February). Workplace e-mail and Internet use: employees and employers

beware. Retrieved from http://www.bls.gov/opub/mlr/2003/02/art3full.pdf

Poull, N., & and Lindback, K. A. (n.d.). Privacy among employee’s personal lives: Establishing

rules, risks, legality, and future of relationships within the workplace. Retrieved from

http://www.ethicapublishing.com/7CH1.htm

Privacy Rights Clearinghouse (2014, December 1). Fact sheet 7: Workplace privacy and

employee monitoring. Retrieved from https://www.privacyrights.org/workplace-privacy-and-

employee-monitoring

Scuderi, R. (2012, May 2). Top employee time-wasters and how to prevent them. Retrieved from

https://www.americanexpress.com/us/small-business/openforum/articles/top-employee-time-

wasters-and-how-to-prevent-them/

HRCU 630 EmployeeSurveillance paper, Feldman

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