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 3
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
EMPLOYEE SURVEILLANCE 4
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).
EMPLOYEE SURVEILLANCE 5
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):
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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):
EMPLOYEE SURVEILLANCE 7
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
EMPLOYEE SURVEILLANCE 8
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
EMPLOYEE SURVEILLANCE 9
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
EMPLOYEE SURVEILLANCE 10
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
EMPLOYEE SURVEILLANCE 11
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.
EMPLOYEE SURVEILLANCE 12
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.
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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/
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