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A man walks into his workplace thinking that it will be another normal day at work. However, his employer calls him into his office and fires him, on the basis that he had written offensive threats in an email towards one of his bosses. The employee now files a wrongful discharge action alleging that the employer’s actions violated his right of privacy. The employee also states that the company had assured its employees that all email would remain confidential. The employer strike back by saying that he should have the right to have interest in preventing inappropriate and unprofessional comments over the email system. The question is who is right in this case. Does the employee have any privacy rights? This answer is found in the 1986 Electronic Communications Privacy Act (ECPA), the only federal legislation that addresses this issue (Stellin 1996). This act states that “it a federal crime for an individual to intentionally or willfully intercept, access, disclose or use another's wire, oral, or electronic communication” (Hernandez 1996). However, the definition of Electronic Communication is defined as “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce”(Hernandez 1996). This act does not apply to workers in a private business, because email in a private sector does not affect interstate commerce (Dichter 1996). Therefore, if there is no legislation that gives the right to an employee, then judges in each case has to act on a trial by trial basis, to determine whether the employer has the right to intrude into the employee’s privacy. Although the Electronic Communications Privacy Act of 1986 established limits on employer's ability to monitor their employees, a new privacy act should be passed that explicitly addresses the employee and employer rights in the realm of Internet and email.
The advancements of technology in such a quick time have outpaced the privacy policies. In 1996, it was estimated that more than 40 million workers were corresponding via e-mail and the number was increasing twenty percent a year (Dichter 1996). But in 1986, when the Electronic Communications Privacy Act was passed, legislators did not consider that technology would get so advanced, and that email and the Internet would influence the workplace. “The act was mainly to expand preexisting prohibitions on the unauthorized interception of wire and oral communications to encompass other forms of electronic communications” (Dichter 1996). This act was very broad. Therefore, when figuring out if email would be considered as an electronic communication, there were many exceptions including the provider of a service, which the courts interpreted as including employers (Stellin 1996). Therefore by having a more detailed privacy act, it will justify what employers can and can not do.
As more workers begin using email and the Internet in the workplace, employers become more concerned with what the employees are doing. In a survey, 35% of all companies keep an eye on their workers with surveillance (Grimsley 1997). The problem lies in the fact that a lot of companies do not tell their employees that they are monitoring them. There are several types of computer monitoring which an employer can use. “Employers can use computer software that enables them to see what is on the screen or stored in the employees' computer terminals and hard disks” (Privacy Rights.Org 1996). Some of this software includes Netnanny, Surfwatch, and Investigator. When these programs are used, Employees’ believe that their privacy rights are violated. There have been many cases where the plaintiff (the employee) sued their employers for invasion of privacy. In Bourke v. Nissan Motor Corp., two employees were sending to each other personal emails of a sexual nature (Dichter 1996). Their employers read it, and issued the two workers written warnings for violating company policy (Dichter 1996). The employees thought that because they were given passwords to their emails, they had privacy (Dichter 1996). However, they were wrong in this matter as there is no law or act that states those employees cannot monitor email. The U.S. constitution also, does not guarantee a right of privacy. The Fourth Amendment that protects U.S. citizens against unreasonable search and seizure by the government does not protect private employers (Stellin 1996). In another court case, Shoars v. Epson America Inc., Ms. Shoars, an email administrator, told Epson’s employees that their email was confidential (Garcia 1996).
However she did not know that her supervisor was monitoring all the employees’ e-mail (Garcia 1996). “After finding out that the supervisor was monitoring e-mails, she filed a class-action suit on behalf of her and her fellow employees, claiming invasion of privacy”(Stellin 1996). The court ruled against...
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1996.Employee Monitoring: Is There Privacy in the Workplace? Privacy Rights Clearinghouse. 14 Oct. 1999. http://www.privacyrights.org/fs/fs7-work.htm
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Garfinkel, Simson." Snooping on Workers Goes PC." Wired News
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