Can Your Employer Spy On You
'They began to monitor everything: every keystroke, my e-mails, client documentation, time spent between calls it was like the company needed to own me, instead of just trusting me to do the job they'd hired me for,' says Johansen, an independent sales professional.
Stories like Johansen's are being shared increasingly at water coolers across the country--those that aren't being scrutinized by video-cameras, that is. Workplace surveillance, otherwise known as 'employee monitoring' (or just plain spying, for short), is more pervasive than you might care to realize. 78% of U.S. companies use some sort of mechanism to track worker behaviour and messaging, according to the American Management Association.
Not that this is necessarily a bad thing. Charles Humphrey, an Ottawa lawyer who acts on behalf of employers, explains the rationale for surveillance. 'An employer has the right to ensure that its staff is not involved in illegal activity, that company secrets are not being leaked, and that the company's property is not being used inappropriately.'
Humphrey adds that recent litigation arising from abuse of the Internet and company e-mail makes it critical for companies to know what their employees are doing. He cites the admittedly extreme National Defense Department case where a worker was caught with pages and pages of child pornography stored on the government's own server.
According to Humphrey, 'having offending material of any sort in the workplace, then having it appear on people's screens, puts the employer at risk of violating human rights codes by creating a 'poison environment,'' a term being used now in legal proceedings.
It's enough to make you reconsider sending that raunchy joke to your colleagues via e-mail. But monitoring is not always limited to computers. Fact is that your company can check you out in all sorts of ways, especially in the private sector where no collective agreement exists to govern this murky area.
Basically an employer can keep tabs on you in one of two ways: electronically or manually. The electronic side includes your workplace computer (every program you use, each e-mail you send or receive, every internet site you visit); phone and voicemail audits; and possibly even secret video cameras.
Then there's the manual part, which ranges from getting other employees to watch you, to rifling through your desk once you've gone home.
Sound scary? Let's consider ourselves fortunate. In the U.S., the American Civil Liberties Union (ACLU) is looking into such sinister developments as random drug checks, polygraph or lie-detector use, and off-the-job shadowing of staffmembers. Never mind the USA Today report of potential employers beginning to use biometrics, in this case fingerprint scanning, to see if applicants have criminal records, or even medical problems!
At least there's is case law emerging to limit the use of such activities in Canadian workplaces. Lorne Richmond, a lawyer who acts for unionized employees, cites the example of video-cameras in the office. Today they are only allowed to be used when there are 'probable grounds to suspect improprieties by a specific employee or group.'
On the other hand, Richmond emphasizes that there is no reasonable expectation of privacy when you are operating on behalf of your employer; whether on their premises, in your home, or at a client's. This is particularly true when using a company's equipment, especially computers and laptops -- where every last item you input remains on the hard drive, immune to primitive erasure efforts.
Change is afoot though. The Privacy Commissioner of Canada is rolling out the next phase of legislation to enshrine the rights of individuals, and further define the limits of acceptable data gathering. The primary vehicle for this is The Personal Information Protection and Electronic Documents Act (PIPEDA). It governs the management of personal information by organizations involved in commercial activities.
The Act, first passed in April 2000, 'strikes a balance between an individual's right to the protection of personal information and the need of organizations to obtain and handle such information for legitimate business purposes,' according to the Privacy Commissioner's website, www.privcom.gc.ca.
Richmond, whose practice is in Ottawa, explains that employees will have the right, with the next stage of PIPEDA on January 1, 2004, to consent or not to having their employer collect information on them. However, he cautions that this consent may actually be implied merely by showing up for work and using the company's facilities or equipment.
Which, according to Humphrey, makes good business sense. He supports the use of computer monitoring, for instance, if it means reducing his clients' liability. 'An employer must be concerned about material coming back and being subject to subpoena, being used against them, as has happened in commercial litigation,' he says.
Richmond disagrees. 'Just because the company owns the pen you use, doesn't mean they have the right to view every letter you write with it, or who you send the letter to,' he says.
Whoever's right, the boundary between preventing a crime and managing performance is blurring dangerously. Some employers are cracking down on time wasting, such as sending personal e-mails, playing games, dating, shopping, checking stock prices and gambling online during working hours. Tracking this cyberslacking, using programs with such daunting names as SpyAgent and Web Sleuth, has become a mini-industry in itself.
Does this mean that anything we type, download, say or do at work could be used against us at some point? Encouragingly, Humphrey adds that 'unless activity of employees interferes with job performance, then employers are not interested in listening.'
Empty words, however, for Johansen, who was shocked to learn that her boss had been listening in, unannounced, on her phone calls at work. 'He knew things about me that he couldn't possibly have known unless he'd been eavesdropping on me.' When Johansen confronted her boss, he shrugged his shoulders and claimed he had the right to know everything she did during work hours.
Which brings up a fundamental question: if workplace surveillance is indeed becoming a fact of life, then how do you avoid being compromised by it?
Using common sense appears to be your best bet. Says Humphrey, 'People seem to forget that they are not anonymous when they are at work.' How else to explain the unstoppable tide of potentially offensives messages, including racist humor or sexy photos, being sent via the employer's communication channels?
If, like most people, you're unsure of your rights and obligations in these matters, here's your recourse. Skim through your personnel manual to see if anything relevant is mentioned. Or consult your HR rep. If you're unionized, speak to your steward or ask for a copy of the collective agreement. As a final resort, consult an employment lawyer who specializes in privacy issues.
Ultimately, since the law in this area is emerging as you read this, only you can decide how much monitoring you're prepared to put up with. For some, it will always be an acceptable price to pay for employment. To many others, personal privacy and the desire for anonymity are worth leaving for. In the meantime, says Johansen, 'never assume that what you say or do isn't being watched. Then hold yourself to a reasonable standard of professionalism so that you can't be compromised.'
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