Employees' Rights in the Workplace
With the rise of technology there arose a fear of surveillance. However,
George Orwell's 1984 passed us by without noticeable big brother
control, and the national concern over espionage diminished with the
demise of the U.S.S.R.
These past threats were concerns over the use of technology by
governments that had sufficient resources to use the technology for
sinister purposes. The new threat is not technology in the hands of
government, it is technology alone. What once required massive manpower,
now requires merely a personal computer. Technology has made the power
to monitor others widely available, whether to governments, private
enterprise or individuals. This article discusses some of the laws
applicable to the monitoring of employees in the private workplace.
An employee, by the very nature of the employment relationship, must be
subject to some level of monitoring by the employer. However, this
monitoring has limits. Courts have held that it is a tortuous invasion
of privacy for an employer to monitor employee telephone conversions.
Similarly, mail carried through the U.S. postal service is granted a
high level of protection.
However, much employee communication now takes place over private and
public networks via e-mail, or voice mail. These forms of communication
are very different from telephone calls and letters. For example, after
transmission and receipt, these communications are stored for an
indefinite period of time on equipment under the exclusive control of
the employer. Additionally, these communications can be examined without
the knowledge of the communicators. As is often the case, the law has
difficulty keeping pace with the issues raised by fast changing
Electronic Communications Privacy Act -
In the federal sphere, only the Electronic Communications Privacy Act of
1986 (ECPA) directly prohibits the interception of e-mail transmissions.
The ECPA prohibits the interception by (1) unauthorized individuals or
(2) individuals working for a government entity, acting without a proper
warrant. The ECPA is mostly concerned with the unauthorized access by
employees or corporate competitors trying to find out valuable
information. However, while there is no specific prohibition in the ECPA
for an employer to monitor the e-mail of employees, the ECPA does not
specifically exempt employers.
The ECPA has several exceptions to the application of the prohibition of
interception of electronic communications. The three most relevant to
the workplace are (1) where one party consents, (2) where the provider
of the communication service can monitor communications, and (3) where
the monitoring is done in the ordinary course of business.
The first exception, consent, can be implied or actual. Several courts
have placed a fairly high standard for establishing implied consent. For
example one court held that "knowledge of the...