Bernal 1

Moises Bernal
CST 300 Writing Lab
18 October 2016
Employee Monitoring and Privacy Rights
Employee monitoring consists of monitoring employee activity, usually for purposes
pertaining to legal liabilities, employee performance, or security concerns. Employee monitoring
is a key issue especially because employee monitoring software is more powerful today than ever
before. For example, a popular free employee monitoring software, ActivTrak, allows employers
to monitor opened tabs in real-time, keep a continuous record of screenshots, and schedule times
for monitoring (Activtrak, 2016). The obvious issue that comes up with the use of this
technology is the issue of employee privacy rights as employees may be required to share
information with their employer, some of which may be personal. However, employers are
required to be proactive in protecting the companys legal liability when it comes to employees
using company resources (e.g., cell phones, internet, computers, company email) for business not
related to the company (Yerby, 2013). The way employees can be proactive is to actively
monitor employees use of such resources by establishing employee monitoring software. Famous
court cases involving privacy rights, as they pertain to employee monitoring, include Katz v.
United States (1967) and Smyth v. Pillsbury Co (1996). These rulings involve an employee's
expectation that a company may be monitoring an employee and whether or not this may be a
violation to the individuals privacy rights.
The Katz v. United States case involved the wiretapping of a public phone booth in order
to gain evidence of illegal gambling. This case was to determine whether or not a persons
privacy rights are preserved in a public place. According to Tuerkheimer (1993), the court ruling
on the Katz v. United States case indicated that privacy should be protected even in public
places, and that a court order is necessary before wire-tapping a telephone booth. In this

Bernal 2
decision, the Supreme Court referenced the Fourth Amendment and its protection of people, not
places, that is, people have rights to privacy even in public places (Tuerkheimer, 1993). The
reference was used to determine that there was a reasonable expectation of privacy when the call
was placed in the public phone booth by Katz (Tuerkheimer, 1993). However, this idea of
having the right to, in a sense, be alone in a public setting is not as clear as presented in this
case. For example, an employee may use this argument to state that they expect privacy in their
online communications at work and that employee monitoring would be infringing upon their
rights to privacy. This is the underlying argument of Smyth, in Smyth v. Pillsbury Co. Smyth
communicated inappropriate and unprofessional messages to a co-worker via email and for this
reason, Pillsbury Co terminated Smyths employment (Mullins, 1999). Smyth filed a wrongful
termination lawsuit against Pillsbury Co, mentioning that there was an expectation of privacy in
email communications but in the ruling for this case, the court determined that the employers
actions were within the law as there were no reasonable expectations of privacy in the email
communications (Anonymous, 1996). Anonymous (1996) stated that The court also cited the
company's interest in eliminating inappropriate comments and illegal activity over its e-mail
system as reasons for intercepting the message. This indicates a separate argument for employee
monitoring which is that employee monitoring can provide a safe environment for the company
and its employees by preventing legal liabilities that may pertain to sexual harassment, racial
discrimination, or other forms of discrimination in the workplace.
There are a number of arguments on both sides of the main issue of employee
monitoring. Some of the supporting arguments for the monitoring of employees include the
following: legal liabilities (e.g., sexual harassment, racial discrimination) are prevented,
company information is protected, and employees become more productive when they know

Bernal 3
they are being monitored. On the other hand, arguments against the monitoring of employees
include the following: employee creativity is affected and employee becomes less productive,
amount of control employees have over their own information decreases, and employees are
stripped of all privacy within computer communications.
To support employee monitoring, companies argue that employee monitoring can be used
as prevention and response to legal issues. For example, the courts can find a company liable for
not maintaining a safe working environment based on the hostile work environment caused by
inappropriate online communications of employees using a company computer or network
(Yerby, 2013). The stakeholders who hold this position are operating under a particular ethical
framework. The employers have a position that determines ethically soundness based on what
will benefit the company (i.e., preventing legal actions against the company) and therefore
operate within the Ethical Egoist ethical framework. However, some individuals operate under
Utilitarianism and hold that a company that benefits from the prevention of legal issues will in
turn benefit all of the companys employees. In particular, if an employer is not aware or
attentive regarding communications of sexual harassment, racial discrimination, or other forms
of discrimination, they are subject to liability to employees which can have financial
repercussions (Dillon, Hamilton, Thomas, & Usry, 2008). Printed email messages between
employees have become a common piece of evidence for cases of sexual harassment in the
workplace such as Schwenn v. Anheuser-Busch where the employer was not held liable for
sexual harassment emails since there was a sexual harassment policy in place that allowed
employees to file complaints (Dillon, Hamilton, Thomas, & Usry, 2008). Whether the legal
dispute involves sexual harassment, racial discrimination, or other forms of discrimination, the
response should be the same, an employer must make sure that a system, such as employee

Bernal 4
monitoring, is in place to ensure there is a safe work environment and to prevent potential legal
issues.
Protecting company information should also be considered when deciding whether or not
employee monitoring should be used. With technology advancements, most companies have to
deal with the leakage of corporate information. Large companies in particular deal with so much
valuable information, all of which needs to be protected. Individuals, or hackers, from opposing
companies are not always responsible for the leaking of company information. Many times
company information is leaked by a company employee. This may be a disgruntled employee
who emailed trade secrets or confidential information, or even an employee who entered the
company in order to gain access to such information (Martin & Freeman, 2003). In this day in
age, it is a necessity for an employer to establish some form of employee monitoring system in
order to ensure that important company data is protected. According to Martin and Freeman
(2003), By monitoring internet usage and context, corporations argue that they are able to detect
and halt security breaches. Individuals supporting employee monitoring for this reason are also
operating with the Ethical Egoist framework as they hold that the protection of company
information is enough to justify employee monitoring. Furthermore, the importance of protecting
company information is evident through rulings in court cases such as Briggs v. American Air
Filter Co. In this court case, there were no clear communicated policies regarding any
implementations of employee monitoring within American Air Filter Co (Dillon, Hamilton,
Thomas, & Usry, 2008). However, the employer became suspicious of company data being
leaked to an opposing company by an employee and decided to secretly implement monitoring of
the employees conversations to gain evidence for terminating the employee (Dillon, Hamilton,
Thomas, & Usry, 2008). According to Dillon, Hamilton, Thomas, and Usry (2008), The court

Bernal 5
held that the supervisor acted in the ordinary course of business by listening-in while the parties
discussed business matters. So, the leakage of company information was considered to be so
important that the court ignore the fact that employee monitoring was happening without an
established company policy. Company information must be protected in order to maintain a
growing successful company and this can most easily be accomplished by the use of employee
monitoring software. Moreover, there are other factors a company on for success, such as the
overall productivity of the company employees.
A corporations advancement depends heavily on the productivity of employees. For
example, if an employer has approximately 500 employees and each of those employees is
spending two hours per day online for non-business related purposes the company can have
potential losses of $4 million annually (Yerby, 2013). Companies may choose to combat the lack
of productivity of employees by establishing a system of employee monitoring. For example, an
employer may keep track of the amount of time an employee is spending on social media
websites by the use of continuous screenshots or keep track of the amount of time an employee is
on standby (i.e., not doing anything on the computer) by utilizing keystroke logger software. If
an employer identifies a lack of productivity, he or she may alert the employee before the
problem worsens. This argument is logical since an established employee monitoring system
should result in an increase in the amount of time employees spend on their computers working
on business relevant sites. However, there is a jump in logic when assuming that this increase in
time will lead to higher productivity.
That is why opponents argue that the fact that the employee knows they are being
watched may have a negative impact on productivity of that individual. According to Martin and
Freeman (2003), there is a link between monitoring and psychological and physical health

Bernal 6
problems, increased boredom, high tension, extreme anxiety, depression, anger, sever fatigue,
and musculoskeletal problems. Those who argue that employee monitoring is not ethical since it
would promote a less pleasurable workplace environment due to a link between employee
monitoring and various problems previously mentioned, are operating under the ethical
framework of Utilitarianism. Within this framework, the amount of pleasure and pain an action
provides to everyone is used to decide whether that action is ethical. Also, according to these
stakeholders, maintaining a culture of trust in the workplace (i.e., self-monitoring) can lead to
higher productivity. According to Heathfield (2016), establishing an employee monitoring
system in response to a lack of productivity by a small percentage of employees would have the
opposite effect. It can lead to a waste of energy by employees as they would need to think more
intently about whether or not the sites that they are visiting online are appropriate (Heathfield,
2016). Along with this is the argument that surveillance may lead to a decrease in creativity,
especially in job positions that rely heavily on an employees creativity, since the employee may
not conduct certain searches with the concern that they may not be considered appropriate by the
employer. According to Martin and Freeman (2003), an environment of this sort may limit each
employees creative thinking resulting in potential ideas being filtered out. Therefore, a company
that relies heavily on innovations may experience a decrease in productivity (Martin & Freeman,
2003).
Another argument against the implementation of an employee monitoring system is that it
robs the employee of any kind of privacy within virtual communications. According to YaniskyRavid (2014), employers should provide the employees with a place for privacy within virtual
communications even when they [employees] are using corporate network tools or Internet
accounts, even during working hours, and even more so while not using their employers

Bernal 7
property. If everything an employee does on any device at the workplace is being tracked by the
employer, then the employee has no place for privacy within electronic communications. Due to
this absence of a privacy zone in the workplace, the working environment will become one
where there is lack of respect for employers and poor working relationships (Alder, Schminke,
Noel, & Kuenzi, 2008). There is an expectation of privacy for every employed individual,
whether it be in a public place or in the digital world. The privacy that is expected is nonexistent
when the employer establishes an employee monitoring system that will monitor every single
search or communication. Consequently, employees an employee monitoring system represents
an intrusion on the employees privacy. An intrusion of privacy may occur when there is an
expectation of privacy that is both subjectively and objectively reasonable by the employee and
an employer prevents this such privacy to occur (Yanisky-Ravid, 2014). This is exactly what
happens with the establishment of employee monitoring, since employee monitoring is directly
prevents such privacy from existing. Furthermore, support for this intrusion of privacy may be
happening due to a misunderstanding of the virtual era with regards to virtual data and
communications.
The main aspect of this position is determining whether or not an employee has the same
right to privacy in and outside the workplace. Therefore, it is important to understand legislation,
as it pertains to privacy in virtual communications, in order to have a greater grasp on this issue.
For example, the Electronic Communications Privacy Act of 1986 (ECPA) was enacted to
protect employees from unauthorized access of electronic communications (e.g., emails, chat
messages). An employer must make sure that they are working within the law when establishing
employee monitoring systems. One of the laws enacted by the ECPA is the Wiretap Act. This act
protects employees by establishing that, in regards to electronic communications, the use,

Bernal 8
disclosure, and interception of contents is prohibited (Ford, Willey, White, and Domagalski,
2015). An interception, according to Ford, Willey, White, and Domagalski (2015), is defined as
the aural or other acquisition of the contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical or other device while the communication is in
transit. Although the Wiretap Act appears to protect an employees privacy rights in regards to
electronic communication, the latter part of the definition of an interception does not completely
address electronic communications concerns that pertain to the storage of information (Levinson,
2011). With the storage capabilities of servers increasing, it has become common for the
conservation of information in the form of emails, screenshots, and searches. Nonetheless,
storage is also addressed by the ECPA within the Stored Communications Act.
The Stored Communications Act provides privacy protection by limiting a person or an
entity such as the government in regards to the ability to gain access to an individuals
communication information that is stored by the individuals internet service provider (Ford,
Willey, White, & Domagalski, 2015). Also, with regards to common law, if an employees
private interest is outweighed by the countervailing legitimate business of the employer, the
employee typically loses. Within the United States law, there are very few protections of
employee privacy rights in place regarding employee monitoring, contrary to the more stringent
employee privacy laws reported in Europe (Tesone, 2004). As a matter of fact, according to
Ford, Willey, White, and Domagalski (2015), Overall, court opinions generally hold that when
employers access and monitor stored emails on work computers, employees have no reasonable
expectation of privacy even when using an employers computer for personal reasons. As
previously mentioned, the Smyth v. Pillsbury Co dealt with this same issue and the courts ruled
in favor of the employer, Pillsbury Co (Anonymous, 1996). Nevertheless, employers are also

Bernal 9
subject to legal problems in regards to employee monitoring. For example, one of the most
common ways an employer violates an employees privacy rights through employee monitoring
is by the tracking of personal information that is posted on social media about an employee, not
necessarily posted by the employee (Yanisky-Ravid, 2014). As a result, it is important for a
company to clearly and effectively communicate privacy policies with employees in order to be
protected from legal liabilities. However, the fact that an employee is clear and effective in
communicating its privacy policies does not necessarily mean that the privacy rights of the
employees are not being violated. One argument is that could be made is that an employees
private thoughts (in terms of searches and typed words) are being accessed by employees
through monitoring (i.e., using keystroke loggers). Nonetheless, this debate should lead to some
form of agreement for implementing employee monitoring.
My stance is that employers should be allowed to monitor employees as long as
monitoring serves a purpose, monitoring extends to work hours and company issued devices, and
the employer clearly communicates monitoring policies. It may be an assumption to think that a
company is honest in outlining the purpose for monitoring since only the employer will know the
intent of accessing information. A company's outlined purpose may be to keep a safe
environment for employees but the actual purpose may be to gain access to emails pertaining to a
specific lawsuit against the company. Nonetheless, some of the reasons why employers should
be allowed to monitor employees are the following: monitoring can help prevent various forms
of harassment and discrimination, company information is kept secure, monitoring may prevent a
greater problem for the company and employee if a mistake is discovered. However, I do not
agree with companies implementing new employee monitoring systems without knowledge of
the employees. There should be clearly communicated monitoring policies and in case of

Bernal 10
unionized employees there should be a bargaining and general agreement of the implemented
policies in order to ensure that a safe, trusting culture is maintained. As Levison (2011)
suggests, employee unions and employers should bargain for certain policies or use arbitration
as a way to develop a coherent agreement about these monitoring and privacy issues. Aside
from a companys liability being protected, this will ensure that there is some form of agreement
between the employees and the employer. In other words, the company would not be forcing the
employees to accept a policy which states that everything that the employee types, searches, or
sends will be monitored by the employer at all times.
The ethics behind the implementation of employee monitoring has become incredibly
relevant as the use of technology has increased in the vast majority of work settings. Employees
are required to communicate through computers and accumulate personal data about the searches
that are made, emails that are sent, and websites that are visited. Consequently, an employer may
need to turn to employee monitoring software in order to deal with concerns that arise from the
increased use of electronic communication. Monitoring employee activity may serve the purpose
of preventing legal problems, keeping a safe environment, improving employee performance, or
other security concerns. However, there is significant debate on whether or not employee
monitoring achieves the stated purpose and whether or not achieving such purpose would make
its implementation ethically right. Individuals working for a company which uses workplace
monitoring software may be giving up their privacy rights since the employer may be accessing
information that is personal to the individual. The question then becomes, Should employees
have the right to privacy in the workplace? The answer to this question will vary based on the
ethical framework employed by the individual. Those operating under the Ethical Egoist
framework of ethics may hold that the protection of company information or the protection of a

Bernal 11
company's liability is enough to justify employee monitoring. Some operating under the
Utilitarian framework may argue that employee monitoring is ethical because the companys
surveillance will benefit all employees if the change leads to company success. Another
individual may also operate under the Utilitarian framework and hold that the ethical choice
would be not to include employee monitoring since it would promote a less pleasurable work
environment due to a link between employee monitoring and various problems such as problems
with health, depression, anxiety, and tension (Martin & Freeman, 2003). The position I hold is
that employers should be allowed to monitor employees as long as monitoring serves a
communicated purpose, monitoring does not extend beyond work hours or company issued
devices, and that employee monitoring policies are clearly communicated.

Bernal 12
References
Activtrak. (2016). Activtrak free employee monitoring software. Retrieved from
http://activtrak.com/
Alder, G., Schminke, M., Noel, T., & Kuenzi, M. (2008). Employee reactions to internet
monitoring: The moderating role of ethical orientation. Journal of Business Ethics, 80(3),
481-498. Retrieved from http://www.jstor.org/stable/25482160
Anonymous. (1996). E-mail guidelines. Association Management, 48(10), 26. Retrieved from
http://search.proquest.com/docview/229330154?accountid=10355
Dillon, T., Hamilton, A., Thomas, D., & Usry, M. (2008). The importance of communicating
workplace privacy policies. Employee Responsibilities and Rights Journal, 20(2), 119139. Retrieved from
http://link.springer.com.library2.csumb.edu:2048/article/10.1007/s10672-008-9067-1
Ford, J., Willey, L., White, B., & Domagalski, T. (2015). New concerns in electronic employee
monitoring: Have you checked your policies lately? Journal of Legal, Ethical and
Regulatory Issues,18(1), 51-70. Retrieved from
http://go.galegroup.com.library2.csumb.edu:2048/ps/i.do?p=AONE&sw=w&u=csumb_
main&v=2.1&it=r&id=GALE%7CA423819245&asid=5e42a3c04da2b0e7fafbc1edc770c
3cd
Heathfield, S. M. (2016, June 29). Electronic surveillance of employees. Retrieved from
https://www.thebalance.com/electronic-surveillance-of-employees-1919262
Levinson, A. R. (2011). Workplace privacy and monitoring: the quest for balanced
interests. Cleveland State Law Review,59(3), 377-398. Retrieved from

Bernal 13
http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1046&context=clevstl
rev
Martin, K., & Freeman, R. (2003). Some problems with employee monitoring. Journal of
Business Ethics, 43(4), 353-361. Retrieved from
http://link.springer.com.library2.csumb.edu:2048/article/10.1023%2FA%3A1023014112
461
Mullins, R. (1999). You've got no privacy. The Business Journal, 16(17), 17. Retrieved from
http://search.proquest.com/docview/222384034?accountid=10355
Tesone, D. (2004). The changing face of a constant issue: Emerging privacy issues. Journal of
Applied Management and Entrepreneurship, 9(1), 119-124. Retrieved from
http://search.proquest.com/docview/203922911?accountid=10355
Tuerkheimer, F. (1993). The underpinnings of privacy protection. Communications of the
ACM,36(8), 69-73. Retrieved from
http://go.galegroup.com.library2.csumb.edu:2048/ps/i.do?p=AONE&sw=w&u=csumb_
main&v=2.1&it=r&id=GALE%7CA14207795&asid=c1c55810e78b1e3429f389ba30665
2bf
Yanisky-Ravid, S. (2014). To read or not to read: Privacy within social networks, the entitlement
of employees to a virtual "private zone" and the balloon theory. American University Law
Review, 64(1), 53-107. Retrieved from
http://search.proquest.com/docview/1629660844?accountid=10355
Yerby, J. (2013). Legal and ethical issues of employee monitoring. Online Journal of Applied
Knowledge Management, 1(2), 44-55. Retrieved from
http://www.iiakm.org/ojakm/articles/2013/volume1_2/OJAKM_Volume1_2pp44-55.pdf