Andrew Dahlinger, Ben Wenker, Travis Weisenborn

Andrew Dahlinger, Ben Wenker, Travis Weisenborn

ITS 351

Employee Monitoring

In today’s ever changing world of technologies, companies all over the world have started monitoring their employees much more thoroughly. To help the companies in lawsuits that may pertain to any facet of their company. Giving employers much more powerful tools to help secure their information and protecting their company as well as their employees. Companies are using many different kinds of software and technology to track employees every keystroke, with many employees unaware of the monitoring that’s taking place. The thought of protecting privacy comes into mind. How do the employees feel about their constant monitoring, and what kinds of lawsuits have been filed against companies from disgruntled employees. Well first take a look at the software’s companies are using to track their employees.

There are many different brands that companies are using, but we are going to look past the name of the product and look at what these products really do. What are these companies recording about their employees? There are many different types of equipment in which companies monitor. Employees can monitor telephones and many do, but surveillance and monitoring software of computers is much more sophisticated, and much less restrictive with laws.

Keystroke monitoring is where the software will actually record every keystroke made on that machine. Every button pressed on the keyboard and every single mouse click. To supplement the keystroke monitoring they take periodic screen shots of exactly what is on our monitor screen. All of this information is logged and usually saved in a secure monitoring server. All of these activities are time stamped giving employers exactly how long each specific program was used. All this information and be potentially helpful to the company. They monitor much more than just keystrokes.

These technologies also log every single internet connection. Not just logging onto the internet but each connection made with your computer to another recording all the important information your sharing with each other. This includes internet driven protocols like HTTP, FTP, SMTP, POP3, TCP/UDP, IP, and all messaging services like AOL or yahoo messenger. With all of this information recorded it can show exactly what machines your computer was talking to, what you were talking about, and save the information for later if needed. This records all email messages, attachments, anything you sent or received from your machine.

Application monitoring is exactly what it sounds like, it logs all applications used how long they were used, as well as all the content within those applications. Remote surveillance is another important issue. This allows the company to track what the employee is doing with they login to network from a remote location. This allows them to see what the employees are accessing as well as any documents they open on their end while the connection is made. More restrictive on what can be monitored than on campus network surveillance, but necessary in providing security for the network.

E-mail forwarding is a ways that a company can intercept emails from all employees. When a new email comes in or goes it out it is copied and saved to an email server where they keep records all emails. This is not just for the companies based email systems either; it works for whatever email host they are using. It is built into their network to save all SMTP, and POP3 messages. Companies also often used closed circuit monitoring or real-time surveillance, where the literally are recording everything that is happening on your monitor. Almost as if there was a little video camera recording everything that you see on your computer, which can be seen over the internet by authorized personnel in real time.

These types of software usually have a couple other little features to help with productivity. They can filter and block internet content. This is helpful at stopping employees from looking at non-professional websites. Also authorized personnel and remotely freeze or lock up a workstation if they suspect any suspicious activity or the entire network if they realized they were hacked. They can also remotely unfreeze the machines as well. Another feature of this software’s is you can have remote reporting. Where all the information gathered is sent in detail of the entire network is sent to specified email addresses. This is how these technologies work, but are their other implications of these new monitoring techniques.

Workplace privacy and employee monitoring is an ongoing conflict in the business world that brings up controversial issues such as how much monitoring is ok in the workplace and exactly what is legal and ethical as to what an employee can monitor and view of its employees. With new technologies emerging at a rapid pace, employers can use many different techniques to watch and monitor their employees to ensure that they are doing their job and not wasting the company’s pay for non work related issues. Here is where the conflict comes in. Employers want to monitor their employees to ensure that they are doing a good job and are acting in an ethical manner, but the employees do not want their every move watched which can lead to what some say a more stressful work environment causing a decrease in work. Through out the last several years there have been many court cases regarding employee monitoring which have set some standards and guidelines for what is right and wrong based on the interpretation of the laws in place for employee monitoring. One of the laws that is commonly looked at in employee monitoring which helps decide the judging of the case is the Tort of Intrusion stated in the Electronic Communications Privacy Act (ECPA). Most jurisdictions follow Dean Prosser's description of intrusion on seclusion as written in the Restatement:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person (http://www.workrights.org/issue_electronic/em_common_law.html). Many cases outcomes are interpreted by looking at this Tort and I will provide some examples to some cases that have impacted and been effected by ECPA dealing with employee monitoring.

An example case that I want to look at deals with employers firing an employee based on inappropriate e-mail that was being sent during work. The case is Bourke v. Nissan Motor Corporation. The facts of the case that were summarized by the court are as following: “Plaintiffs were hired by Nissan in June of 1989 as Information Systems Specialists, to assist Infiniti car dealership personnel in resolving problems with the computer system which ran the operations of Infiniti dealers. Plaintiffs were essentially customer service representatives for users of the computer system. In June of 1990, one of plaintiffs' co-workers, Lori Eaton, was conducting a training session, demonstrating the use of E-mail at an Infiniti dealership. In order to show how E-mail could be used to aid the management of the dealership, Eaton randomly selected a message sent by Bourke to an employee of the dealership. 'Unfortunately, Bourke's E-mail was of a personal, sexual, nature and not business-related. Eaton reported this incident to her supervisor, who with management's authorization reviewed the E-mail messages of the entire workgroup. Nissan found substantial numbers of personal, including sexual, messages from Bourke and Hall, and issued written warnings to plaintiffs for violating the company policy prohibiting the use of the company computer system for personal purposes. Over the course of her employment with Nissan, Bourke received periodic written performance reviews which indicated that she had problems in the areas of decision making, oral communication skills, job knowledge, and working with her peers. In her annual performance review, which she received in October 1990, Bourke was rated as "needs improvement," the second lowest of six levels. When Hall's performance was reviewed on an interim basis in May 1990, she received an overall borderline satisfactory rating. Her performance was rated unsatisfactory in certain areas. She was criticized for spending too much time on personal business, and was told that she needed to demonstrate greater initiative and to put forth a greater effort to learn the computer system. In her annual performance review, Hall's overall evaluation was unsatisfactory, the lowest of six possible ratings. Her job performance deteriorated after the October 1990 review. On December 28, 1990, while Nissan was closed for the Christmas holiday, plaintiffs filed grievances with Nissan's human resources department, complaining that the company had invaded their privacy by retrieving and reading their E-mail messages. Based upon Nissan’s actions in reviewing their E-mail messages as described above, plaintiffs sued Nissan for common law invasion of privacy, violation of their constitutional right to privacy, and violation of the criminal wiretapping and eavesdropping statutes. They also stated a cause of action for wrongful discharge in violation of public policy, that is, termination in retaliation for the filing of complaints objecting to Nissan's invasion of their privacy. Nissan moved for summary judgment, contending that there existed no disputed issue of material fact to warrant trial of the matter. The trial court found in Nissan's favor on two grounds: (1) Based on the undisputed facts, plaintiffs had no reasonable expectation of privacy in their E-mail messages; and (2) plaintiffs failed to submit a separate statement meeting the requirements of Code of Civil Procedure section 437c” (http://www.loundy.com/ /Bourke_v_Nissan.html). This is just one example of a court case dealing with employee monitoring, and it happened to rule in favor of the employer Nissan, who based on the court ruling violate any privacy rights of the employer. When I first read this case I thought that the plaintiff would win the case because the e-mail was discovered through mischance and I thought that would be a case of intrusion of privacy. However after reading and gaining a better understanding I can agree with the ruling. The e-mail’s which the employee was sending was on company software and it was essential that the employee open up an email to provide better training. Just as Solove says in the book, if sending e-mail’s on a company’s network, you should have NO reasonable expectation of privacy, and that is one of the facts that the court made it’s decision on.

As technology increases and makes employee monitoring cheaper and easier to implement, more and more companies are sure to continue to monitor it’s employees within the legal limits. An interesting fact that I found that showed just how many companies practice some form of employee monitoring is the following: “The American Management Association (AMA) performed a survey on employer monitoring of employees and found that 75% of those surveyed already monitor employee Web site surfing. A majority of this group is also using content proxy systems to block inappropriate surfing. In the survey, more than 50% review and retain emails, while approximately 30% track keystrokes. And more than 80% of these employers surveyed disclose their monitoring policies and practices to their employees” (http://searchcio.techtarget.com/originalContent/0,289142,sid19_gci1202445,00.html). This stat shows just how many companies practice some form of employee monitoring. 75% of companies said that they do use employee monitoring which is a very significant number, showing that almost every employer does do it. Regardless of if an employer does monitor its employees or not, as long as it’s done properly and within the legal guidelines there should be no issue on whether or not the company is doing something wrong or not. However, how much monitoring an employee does in fact do is up for discussion, but it is up to the business and what policies they chose to implement based on their own management strategies.

Employee monitoring can be used to gauge the productivity of each employee. But, it can have negative affects as well. Problems such as low employee morale, high stress levels, and lower performance have been attributed to employee monitoring. When employees think their entire work day is being watched and scrutinized, they can be affected in a negative manner. These higher levels of stress have been attributed to more sick days, economic loss, and the potential for employees to act unethically.

According to Cole, many studies have attributed problems such as; low morale, low productivity, fear of job loss, anxiety, depression, and nervous disorders to employee monitoring. In one study, an employee referred to employee monitoring as "working as a slave and being whipped, not in our bodies but in our minds" (Fairweather, 1999). Such opinions can certainly have negative impacts on productivity.

In this information age employers often do not interact with or “look over the shoulders” of their employees to monitor performance this leads to a lack of trust. In the absence of trust, employers often turn to electronic monitoring. According to Handy, 1995, when employees are subject to constant monitoring there is a certain level of trust that is lost between employer and employee. The employee tends to think of “Little Brother” watching him/her all day. Many employees see monitoring as an invasion of their personal space and privacy. Distrust and invasion of privacy then often breeds low self respect and therefore loss of productivity.

The main goal of employee monitoring is to increase productivity and therefore increase revenues. Employees being denied the right to conduct a few personal matters at work often leave early to take care of them. Also, managers and supervisors that spend more time monitoring employees are cutting back on their own efficiency and productivity, all of which cost businesses big money. Other costs, such as buying and licensing the employee monitoring software, and the potential lawsuit from a disgruntled employee who feels his/her rights have been violated are inevitable expenses of electronic monitoring.