Privacy in the Workplace

Privacy is something that is deeply valued in Western societies , and appealing to the value of privacy can seem to be a promising argumentative strategy if we are concerned to resist the rise of electronic monitoring in the workplace. Advocates of appeals to the value of privacy in the workplace as a means to resist the rise of electronic monitoring face three major barriers, however. First, employers are often disinclined to recognise privacy as a legitimate value in the workplace at all. Privacy is a value that is typically associated with a private realm, traditionally understood to be the home, and not with public places such as places of employment. Now I am inclined to sympathise with those who find the traditional public/private distinction to be problematic . ^{[ 11]} I do not generally think that the value of privacy has no place whatsoever in the public realm. Nissenbaum (1998) has recently made a strong case for the protection of certain types of information about individuals from public scrutiny, so as to uphold the value of privacy. Our privacy depends upon our being able to prevent various sorts of sensitive information about us from being made public.

But even if employers are inclined to join me in accepting that there is a right to certain sorts of privacy in the public realm, they can argue that such rights do not extend easily to the workplace. Employers can argue that employees agree to exchange their labour for money, and that they, the employers, are entitled to ensure that employees keep up their end of the bargain by monitoring workplace behaviour. Furthermore, they can argue that they are legally responsible for some of the behaviour that employees may engage in while at work, and so it would be reckless of them not to monitor the behaviour of employees . Workplace relations have long involved various forms of supervision, and electronic monitoring is simply another way of conducting supervision, or so this line of argument goes. ^{[ 12]} Employers are typically not inclined to go along with the claim that there is a general right to privacy in the workplace, but suppose for a moment that they were to agree to go along with this claim, or were compelled to accept it. It seems to me that acknowledging such a right would do little to stop the spread of electronic surveillance in the workplace. This is the second problem that advocates of workplace privacy face: even if we accept that there is a presumptive right to privacy in the workplace, there seem to be many reasons that can be appealed to, to override that presumptive right.

Miller and Weckert (2000), who argue that there is a presumptive right to privacy in the workplace, acknowledge that the right to privacy in the workplace should be balanced against the rights and interests of other parties, including employers, customers, and other employees. Employers have a legitimate interest in ensuring that their employees are productive and that their employees are not using the workplace to conduct illegal activities or activities that are against the economic interest of the employer. Customers have a legitimate interest in ensuring that employees are producing and supplying quality products and, by way of justification for the use of the Hygiene Guard (O Harrow, 1997), in ensuring that employees are not spreading disease. ^{[ 13]} Employees have a legitimate interest in ensuring that their fellow employees are pulling their weight at work.

Even if it is accepted that employees have a right to privacy in the workplace, the employer who wishes to utilise electronic surveillance systems to monitor the behaviour of employees can appeal to considerations other than privacy to motivate such use. It seems that use of all of the technologies that are being introduced into the workplace, which we considered earlier, can be justified on such grounds. Although the appeal to the value of privacy might be effective in developing arguments against the use of some possible monitoring devices, it is not a basis for a decisive argument against the use of the various technologies that are actually being introduced.

Could an appeal to the value of privacy be the basis for an argument against the introduction of the sorts of surveillance technologies that are being introduced that is effective, even if it is not decisive? When attempting to balance the value of privacy against other considerations, we are attempting to compare apparently incommensurable values. Many of us may not be sure that the value of protecting members of the public and other employees from possible harassment outweighs the value of privacy that is eroded if workplace telephones and e-mail are monitored . Similarly, we may be unsure that increases in customer safety that result from the installation of the Hygiene Guard outweighs the resulting diminution of employees privacy. Even if we do feel that one of these competing values outweighs the other, we may have difficulty explaining why we feel the way that we do. In the absence of a clear basis for the comparison of such competing incommensurable claims, it is difficult to mount an argument that is effective beyond the scope of a few extreme cases.

The third problem is that, even if it is established that employees have a presumptive right to privacy, it seems that employees can be entitled to waive such a right and employers can motivate them to do this. Consider the case of an employee being offered the following choice by an employer who recognises the employee s right to privacy in the workplace. The employee can remain in the current work situation on the current salary and not have e-mail monitored, or the employee can have e-mail monitored and receive a 20% pay increase. It seems that the employee is entitled to consent to the second option and waive a right to privacy in the workplace, and it seems that this may be a perfectly rational choice for the employee to make. Even if it can be established that there is a right to privacy in the workplace, and even if problems of competing values can be overcome , employees may choose to waive their rights to privacy in the workplace, if given the right incentives.

^{[ 11]} Marx (2001) examines the problematic nature of the public/private distinction in the context of the ethics of surveillance.

^{[ 12]} The typical attitude of employers toward electronic monitoring in the workplace gains apparent support from the current legal situation in America regarding workplace privacy, which is that a right to privacy only exists where it is grounded in a reasonable expectation of privacy (Benner, 2001,p . 2). Such an expectation is not held to be reasonable in cases where employees are explicitly advised of workplace surveillance policies.

^{[ 13]} Employees who wish to use the Hygiene Guard electronic monitoring system can appeal to evidence that indicates that only two- thirds of unmonitored employees wash their hands regularly after using the toilet . They can then argue that this low level of hand washing behaviour amongst employees who interact with the public ( especially those who handle food) constitutes an unacceptable risk to the public (O Harrow, 1997).