April 30, 2013
This series of blogs gives the reader a perspective on the rights, duties, and responsibilities of employers and employees with respect to digital sexual harassment in the workplace.
Part Two. Monitoring Technology in the Workplace
In this follow-up to the last post on the reasoning and background related to monitoring employees’ digital communications in the workplace, I want to discuss the available technology for employers. Employers have a right to invade employees’ digital workspaces because employers have legitimate interests in communications transmitted on their digital networks for a multitude of reasons: to ensure work productivity, to prevent trade secret disclosure, to ensure compliance with federal regulations, to prevent transmission of defamatory statements, and to prevent transmission of unauthorized or illegal material over employers’ digital communication networks, among other reasons.
The vast majority of large employers use digital tracking technology to monitor employees. According to a recent Washington Internet Daily release, 80 percent of major United States companies occasionally record and review employees’ electronic communications or browser use, 67 percent of employers have disciplined at least one employee for improper or excessive use of e-mail or internet access, and 31 percent have fired employees for such conduct. Courts granted employers the right to monitor employee emails to prevent personal use or abuse of company resources, investigate corporate espionage and theft, resolve technical problems, and better cooperate with law enforcement officials in investigations.
Many companies also use software that monitors or blocks their employees’ use of the corporate technology infrastructure. SilentRunner is illustrative of such software. Although most lawyers and employees have never heard of SilentRunner, companies and governmental agencies use the program to monitor their agents and employees. According to Susan Lee, a representative for the internet security assurance service provider TruSecure, SilentRunner provides constant employee monitoring for nearly four hundred companies. Organizations that use this, and similar software, have adopted top-secret policies regarding their use of the product. Although the effort to maintain secrecy about the configuration of monitoring software may seem to indicate that such monitoring is dishonest or immoral, whether it is unethical depends on the reasonable expectations of employees.
In addition to monitoring and blocking capabilities, employers often possess a high degree of control over employees’ computer desktops. For example, ActivatorDesk’s Enterprise Desktops Controller monitors employee computing activities and compares them to a list of approved activities. If an employee performs previously unapproved activities, “ActivatorDesk can instantly implement a ‘lock-down policy”’ while sending network administrators an e-mail alert of the violation. Today, monitoring tools are common and available. For example, parents can utilize the stealth and anti-detection capabilities of “Spector Pro 2011” to monitor their children’s activity on the latest chat programs, such as instant messaging services from Skype, Facebook and Gmail. Enhanced versions of these monitoring applications are readily available for corporate networks.
The majority of large corporate employers in the United States currently use monitoring and blocking software that allows them to observe and block inappropriate digital communications transmitted via the corporate network before the intended recipient receives them. While it is still important to be informed of the level of monitoring within the workplace, employers and employees will have to find the balance between privacy erosion and the ability to block and prevent digital sexual harassment in the workplace.
For every argument supporting monitoring, there are many arguments against it. In the next installment on preventing digital sexual harassment in the workplace, I want to review the judicial response to privacy in the workplace.