Living in Glass Houses

As we saw in Chapter 6, the nation's courts are generally in agreement that employers, as the owners and operators of internal e-mail systems, are entitled to set rules and regulations for their use and to examine the contents of employee e-mails. Now courts and legislatures are being asked how far this authority extends. If an employee purchases a home computer from his employer, does that give the employer an ongoing right to inspect the computer's hard drive? What if the employer pays for or reimburses the employee for the cost of Internet access? How far can an employer go in monitoring the off-duty behavior of its employees? Is there a difference between off-duty behavior that is public and that which is purely private?

The issue that employees must face is that the scope of company property and business interests continues to steadily expand; as it does, it irresistibly compresses employees' personal privacy space.

Telecommuters Beware

A significant part of the problem is the fact that the nature of our work day has changed—our hours are longer and for significant numbers of people, an increasing amount of work is done from home. Currently, an estimated 20 million employees and independent contractors work from home at least one day a month, and thanks to the tremendous growth of the Internet, that number is rising steadily. In addition, millions more employees use their home computers to connect to their office networks at night or on the weekend. ^[19]

Telecommuting offers some significant advantages for both employers and employees, particularly in car-clogged regions of the country like Los Angeles, Atlanta, New York, Seattle, and San Francisco. But with respect to the relationship between employer and employee, it creates some ambiguity about the boundaries between home and office, particularly when the employer supplies some or all of the equipment used to telecommute. This brings the fundamental conflict between the employer's property interests and the employee's privacy interests squarely into the employee's home.

Like most employees, you might be under the impression that you can avoid the worst of the workplace surveillance by working at home. To a limited degree, that's probably true. So far, at least, your employer cannot legally sneak into your home and install a surveillance camera or microphone, and there's little likelihood that your company would go to the trouble of making you wear an infrared badge system to see just how much time you spend in front of the TV. Beyond that, however, the surveillance possibilities in the home office are just as serious and just as pervasive as those found in the most anonymous cubicle farm.

Once again, we have the computer to thank for helping to turn our homes into glass houses. With the right software, your employer can watch what you're doing in the privacy of your home as easily as if you were sitting at a desk in the middle of the company lobby. More significantly, connecting your home computer to the office network raises the possibility that all of the files on your computer could be examined by your employer without your knowledge. Doing so without your permission would be illegal, of course, but the potential exists nonetheless.

From the employer's perspective, there are some minor differences between a computer on your desk in the workplace and a computer in your home office. If you decide to use the latest Playboy centerfold as the wallpaper for your home office computer, there's little likelihood that a coworker or client will see it. But the other potential problems of employee computer use, from poor productivity to harassing e-mails to outright sabotage, can be accomplished as easily from a home computer as from a computer down the hall from the CEO's office. As a result, telecommuting employees are increasingly subject to the same types of surveillance as their hard-wired coworkers, and in fact, surveillance programs such as SmartSuite and Win-WhatWhere are being or have been written to monitor the activity of remote computers.

For all intents and purposes, bringing a company computer into your home is the equivalent of giving your employer a key to the front door. In theory, if your company has no policy in place regarding the use of the computer it provides you for use in your home office, a court might reasonably conclude that you still have a fairly strong expectation of privacy in your home and its contents, including the company computer. But if your employer can demonstrate a reasonably strong business interest in conducting an investigation into your use of the computer, it is likely to be allowed to do so.

And realistically, most businesses that provide their employees with computers with which they can do work at home make sure that they have a detailed usage policy governing how the computer can be used and reserving the company's right to inspect it.

Even if you do not connect your computer to the office network, your employer may still try to see what's on your hard drive. While a group of Northwest Airlines employees were engaged in contract negotiations in 2000, Northwest—suspecting that some employees were conducting an illegal sickout—obtained a subpoena to copy the entire contents of their home computer hard drives. After the contract dispute was settled, the legal battle over the hard drives was dismissed, so there was no ruling on the legality of Northwest's investigation. ^[20] The mere issuance of the subpoena, however, sent shock waves through the offices of both labor and employment lawyers.

In some cases, of course, employees create their own problems. Take, for instance, the example of Ronald F. Thiemann, a former dean for the Harvard Divinity School. Thiemann had a Harvard-owned computer in his home, and in October 1998, he asked a university information technician to transfer large numbers of files from his hard drive to a new drive. When the technician realized that included in the files were thousands of pornographic images, he reported that fact to Divinity School administrators. Although Thiemann was relieved of his deanship, he remains on the Divinity School faculty. ^[21]

Can You Actually Be a Naked Employee?

One surefire way of encouraging your employer to monitor your off-duty activities is to perform them in public. A strong argument can be made that if your off-duty activity, regardless of how public, does not impact on your employer's business, you should not be penalized. However, businesses are generally given considerable latitude in determining what type of behavior is unacceptable.

For instance, the cover of the August 1994 edition of Playboy featured the headline "NYPD Nude: One of New York's Finest Steps Out of Uniform," over a photograph of Officer Carol Shaya in a partially unbuttoned New York City police officer's uniform (complete with a nonstandard issue Playboy Bunny key chain on her utility belt). Police Commissioner William Bratton was not amused; he fired Shaya, saying that she had put the department's reputation up for sale. ^[22] Shaya was not the only New York City police officer to pose this type of problem for the department: In late 1995, patrolman Edward Mallia resigned rather than face disciplinary charges for his nude appearance in Playgirl.

For both Shaya and Mallia, the primary problem lay in the fact that the NYPD has policies that prohibit certain types of off-duty conduct, including posing nude. Shaya compounded her difficulties by posing in her NYPD uniform. By comparison, LAPD patrol officer Ginger Harrison avoided disciplinary action when she posed nude in 2001 for Playboy in part by leaving her LAPD uniform at home, and in part by reading the LAPD personnel rules carefully to see if posing nude was forbidden. As she told Warner Brothers' Extra, "We learned from [Shaya's] experience. We didn't use anything of mine. Everything was rentals or props." ^[23] Despite Harrison's decision to leave her uniform at home, the Department still referred the matter to the city attorney to determine whether she had broken any department rules. ^[24]

Companies have shown a particular interest in policing the involvement of their employees in sexually explicit websites. The aggressiveness with which some employers pursue and punish people who run potentially objectionable websites raises some serious questions about personal freedom and free speech.

Perhaps the best-known example is the case of George and Tracy Miller, two Arizona critical care nurses who worked at Scottsdale Healthcare. In the summer of 1999, the hospital learned that the Millers were operating a sexually explicit website in which they marketed images of Tracy posing nude; subscribers to the site received access to more explicit materials, including still images and video clips of the couple having sex. The Millers told reporters that they had set up their site to raise money for their children's college education.

The site was live for about two months before hospital officials learned about it. George Miller said that he didn't know how word began circulating at Scottsdale Healthcare, but he blamed the couple's firing on the fact that coworkers began logging onto the site from workplace computers. As the hospital began investigating the sudden surge of interest in the website touchable.com, administrators realized that its stars were hospital employees.

To the Millers, the hospital's reaction was an unjustified intrusion into their personal life. "Does a big corporation have ... the right to dictate what you can do on your off time if it in no way interferes with your job?," Miller asked during a MSNBC interview. "I maintain that they do not." The news wasn't all bad for the Millers—the publicity from their dismissal from the hospital doubled the number of their subscribers—but they both made it clear that they were interested in continuing their career as nurses. ^[25]

The problem for the Millers is that the law in such situations generally favors employers. The Millers were at-will employees, which means that the hospital was legally entitled to fire them for any nondiscriminatory reason. Although neither Tracy nor George used anything on the website that came from or identified Scottsdale Healthcare, they were still subject to discipline because they had signed an employee policy that specifically stated they could be disciplined for "immoral or indecent conduct while on or off duty." The determination of what constitutes immoral or indecent conduct, of course, is at the discretion of the employer.

The Millers' case attracted the attention of the Arizona branch of the American Civil Liberties Union, which questioned whether the principle of at-will termination was giving employers too much power to pry into the private lives of their employees. As Eleanor Eisenberg, the head of the Arizona ACLU, put it: "[Employers are] making decisions based on information obtained about what people do when they're not at work—particularly when what they do when they're not at work does not affect their job performance." ^[26]

It's one thing for an employee to be disciplined for posing nude on a website; it's another altogether for an employee to be punished because a family member does something the company considers inappropriate. In North Port, Florida, last year, police officer Daniel Lake was given a three-day suspension for conduct unbecoming an officer after his wife posted sexually explicit photos of herself on the Web. Lake told department investigators that his wife had put the photos online as a surprise for him, and that he was unaware that she had done so. In an interview with the Miami Sun-Herald, North Port City Commissioner Tom Williamson dismissed any privacy concerns: "What happened to this family, even if it was in their own home, makes us a mockery." ^[27]

Recreational Activities and Lifestyle Choices

Most of us don't have the opportunity to pose nude in a national magazine or on the inclination to set up a nude website. Nonetheless, we make choices every day about how to live our lives: which foods we eat, which sports we play, whether we drink or smoke, and so on. It would seem safe to assume that such activities are beyond the reach of even the most inquisitive employer, but increasingly, that's simply not true. We are steadily approaching the time when nothing is irrelevant to an employer's protection of its business interests.

Occasionally, businesses do have a legitimate interest in their employees' off-duty recreational activities. It's not uncommon for employees with specialized skills to have clauses in their employment contracts that forbid them from engaging in risky activities or require them to adhere to a particular diet. Professional athletes are the most common example: If you're being paid millions of dollars to throw a leather-wrapped ball sixty feet and six inches past a batter bent on driving it out of the park, the ball club is going to be more than a little irritated if you break your leg waterskiing during the All Star break. Likewise, if your job is to thread your way through a herd of 300-pound linebackers intent on your near-dismemberment, your employer is going to be irritated if your off-season diet consists largely of Ben & Jerry's ice cream, chips, and beer. To a lesser degree, the same is true for models, actors, violinists, surgeons, and people in certain other professions.

Similarly, if you engage in an off-duty activity that is directly contrary to your employer's businesses interests, the fact that you're doing so on your own time is not likely to placate your boss. It is reasonable for a company to be concerned about such activity and even to take steps to prevent it. For example, most people would agree that a company should be able to forbid its employees from moonlighting for a competitor. However, it's less clear that a business should be allowed to forbid moonlighting altogether. Similarly, if an employee routinely shows up at work drunk, it is completely reasonable for an employer to discipline or even fire that employee. But it seems unreasonable that an employer should be permitted to discipline or dismiss an employee if a supervisor sees the individual getting drunk at a bar on Friday night, but the employee shows up clean and sober on Monday morning.

If the full extent of the relationship between you and your employer was a salary in exchange for specified work, the ability of your employer to monitor your recreational activities or lifestyle choices would be sharply curtailed. The only relevant questions would be whether you were capable of performing your job on a given day, and whether any off-duty activities were directly in conflict with your employer's business interests.

But for most employees, the relationship with their employer is more complicated. As was discussed earlier, an employer's main motivation for monitoring its employees' recreational activities is the incredibly high cost of health insurance. Employers argue that risky recreational activities or destructive lifestyle choices do affect their business, regardless of whether an employee shows up ready and able to work on Monday morning, by making it more expensive to provide the medical coverage necessary to attract good employees. That's why employers often try to screen out employees who have high-risk lifestyles or engage in high-risk recreational activities; if they do hire them, they frequently charge such employees a premium for their health insurance.

Employees have some limited protection for high-risk activities at the state level: A number of states have passed legislation banning discrimination against smokers, and a few states—notably California, Colorado, and North Dakota—have passed laws that are broadly designed to protect employees from discrimination when they engage in legal activities while off duty. However, state coverage is spotty and federal protection for off-duty activities and lifestyle choices is effectively nonexistent.

The gargantuan Health Insurance Portability and Accountability Act (HIPAA) of 1996 includes a provision designed to protect individuals who engage in high-risk recreational activities from health insurance discrimination. According to the legislative language of HIPAA, the law:

... is intended to ensure, among other things, that individuals are not excluded from health care coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities. ^[28]

The inclusion of that language was the result of the lobbying efforts of a broad coalition of recreational groups, ranging from the American Horse Council to the American Motorcycle Association.

Three government agencies—the Internal Revenue Service, the Pension and Welfare Benefits Administration, and the Health Care Financing Administration—were responsible for developing regulations to implement Congress's intent regarding nondiscrimination. However, when the proposed Interim Final Rules for Nondiscrimination in Health Coverage in the Group Market were released in January 2001, recreational organizations were dismayed to realize that the regulations omitted the protections intended by Congress.

In an odd paradox, the so-called Interim Final Rules (which took effect on May 9, 2001) included language that makes it illegal for health insurance companies to deny health insurance coverage in general to individuals who engage in risky recreational activities. However, the same rules also provide that insurance companies may refuse to provide coverage for injuries that arise out of those recreational activities.

In the grand scheme of things, of course, the amount of discrimination experienced by horseback riders, skiers, and other outdoor enthusiasts is far less than the discrimination faced by people with other potentially health-threatening lifestyles. According to the American Civil Liberties Union, the two groups most frequently targeted during preemployment screening and on the job are smokers and those who are overweight. According to a 1988 survey by the Administrative Management Society, roughly 6 percent of all employers refuse to hire people who smoke, even if they only do so off-duty. ^[29] Given the aggressive antismoking campaigns of the last few years and the rise in the costs of treating smoking-related illnesses, that figure is almost certainly higher today.

A case in point is that of a woman named Arlene Kurtz, who was turned down for a clerk-typist job with the City of North Miami because she could not sign an affidavit stating that she had not smoked during the previous year. Kurtz filed a lawsuit seeking to have North Miami's 1990 regulation requiring such affidavits declared unconstitutional. A Florida trial court agreed with her, but the Florida Supreme Court reversed the decision, holding that the City's regulation "does not intrude into an aspect of Kurtz's life in which she has a legitimate expectation of privacy":

In today's society, smokers are constantly required to reveal whether they smoke. When individuals are seated in a restaurant, they are asked whether they want a table in a smoking or nonsmoking section. When individuals rent hotel or motel rooms, they are asked if they smoke so that management may ensure that certain rooms remain free from the smell of smoke odors .... Further, employers generally provide smoke-free areas for nonsmokers, and employees are often prohibited from smoking in certain areas. Given that individuals must reveal whether they smoke in almost every aspect of life in today's society, we conclude that individuals have no reasonable expectation of privacy in the disclosure of that information when applying for a government job ... however, we emphasize that our holding is limited to the narrow issue presented. Notably, we are not addressing the issue of whether an applicant, once hired, could be compelled by a government agency to stop smoking. Equally as important neither are we holding today that a governmental entity can ask any type of information it chooses of prospective job applicants. ^[30]

In addition, the court found that the City of North Miami had presented evidence of a compelling interest: the reduction of health care costs through the gradual elimination of smokers from its workforce. Among the evidence presented by the City was the fact that it self-insures; that people who have not smoked for a full year are unlikely to start again; and that smokers cost the City up to $4,611 more per year in health care costs than employees who didn't smoke. ^[31] Kurtz asked the U.S. Supreme Court to review the Florida Supreme Court's decision, but the Court refused to do so.

Figures for the level of discrimination experienced by overweight people are harder to establish, since few companies will openly commit themselves to a policy of discrimination against a particular group of people. (Companies are likely to be even more circumspect today, given studies suggesting that genetics may play a role in obesity, which conceivably could bring obesity under the terms of the Americans with Disabilities Act.) Nonetheless, the National Association for the Advancement of Fat Acceptance believes that anecdotal evidence shows the level of discrimination against overweight employees to be even higher than that experienced by smokers.

There's no question that as a nation, we should exercise more and weigh less. But if businesses are allowed to choose employees based on the employers' concerns over which employees may cost it more in health care, then it's difficult to see what logical limitations there will be on the ability of an employer to monitor the off-duty behavior of its employees. Every choice that we make, to one degree or another, impacts on our health. The question is whether accepting health care as a benefit of employment requires in turn a complete abdication of our personal privacy rights.

^[19]"Electronic Monitoring in the Workplace," Workrights.org, n.d.

^[20]Dolores Kong, "Big Brother may be watching you," Boston Globe (October 22, 2000).

^[21]James Bandler, "Office porn cases raise issues of privacy, protection," Boston Globe (June 24, 1999).

^[22]As a Playboy Cover Girl, Shaya was paid $100,000 for her pictorial.

^[23]"Cop Poses in Playboy," Extra (May 30, 2001).

^[24]Ironically, Los Angeles is getting a police chief with experience in this area; William Bratton was just appointed to head the department.

^[25]Mike Brunker, "Cyberporn nurse: 'I feel like Larry Flynt'," MSNBC (July 16, 1999).

^[26]Luke Reiter, "Arizona nurses' porn site led to their dismissal," ZDNet (July 19, 1999).

^[27]"Police officer suspended over wife's Internet porn pics," Ananova.com (March 9, 2001).

^[28]"Federal Agencies Propose Adverse Rules on Health Insurance Coverage for Riders," Press Release, American Horse Council (March 26, 2001).

^[29]"Lifestyle Discrimination," American Civil Liberties Union, 1998. Available online at www.aclu.org/issues/worker/legkit5.html.

^[30]City of North Miami, Florida v. Kurtz, 653 So.2d 1025 (Fla. Sup. Ct., April, 1995), cert. denied.

^[31]City of North Miami, Florida v. Kurtz, 653 So.2d 1025 (Fla. Sup. Ct., April, 1995), cert. denied.