Electronic Monitoring in the Workplace

Equipped with this working account of the notions of privacy and confidentiality, including a basic taxonomy of the kinds of information regarded as private or confidential, let us now consider a number of ethical issues posed by electronic monitoring and surveillance in the workplace. ^{[ 2]} Employers clearly have some rights to ensure that their employees are working satisfactorily. It is not only in the employer s interests that the required tasks are performed efficiently and well. It is also in the interests of other employees and in the interests of the general public. This is especially evident in the case of publicly funded organisations such as police services. But it does not follow from this that employees , including police officers, have no right to privacy when at work.

The existence of the right to privacy, and related rights such as confidentiality and autonomy, is sufficient to undermine extreme views such as the view that employees ought to be under surveillance every minute of the working day, or that they should be in a situation where every minute of the working day they suspect that they might be under surveillance, or that there should be surveillance of a nature or extent to which employees are ignorant. These extreme situations involve unjustified infringements of privacy and/or confidentiality. Employers have certain rights in respect to their employees, but there is no general and absolute right to monitor and control employees. This is obvious from the fact that employers are restricted in a whole range of ways by the rights of employees, (e.g., rights to health and safety, doctors and lawyers rights to confidentiality in relation to their clients , police officers rights to confidentiality in relation to informants or witnesses who are at risk). Even in cases where explicit contracts have been agreed to by employers and employees, there are limits to which either party can go in order to ensure that the other party adheres to that contract. So much is obvious. What is less obvious is the extent to which an employer can justifiably infringe on an employee s right to privacy and/or confidentiality. It has already been argued that there is a right to privacy, and, other things being equal, employees have this right. The violation of the employee s right to privacy of concern in this chapter is that posed by the electronic surveillance and monitoring of an employee s activities made easy by current computer technology, including networking. Keystrokes can be monitored for speed and accuracy, and the work on a screen may be brought up on the screen of another without the employee s knowledge. Common software for accessing the Internet logs all activity so that a record is kept of all visits to all Web sites; e-mail, listservers, electronically recorded databases, and so on can also be monitored. A supervisor can easily find who did what on the Internet or in relation to an electronic database. Notwithstanding these technical possibilities of infringing on privacy, protection of privacy ought to be high on the list of priorities.

Employees, as well as having a prima facie right to privacy, are also accountable to their employers because their employers (and in the case of public sector agencies such as the police, the community) have a right to a reasonable extent and quality of work output for the wages and salaries that they pay. Moreover, it is often claimed that computer monitoring of employees has multiple benefits, at least potentially . It improves the quality of services and thus is good for clients; it leads to greater efficiency, which, in the case of police organizations, ultimately benefits the community; and it helps employees to do their jobs better, thereby increasing job satisfaction. Given all these benefits, why is it questioned? There are two types of reasons, one type being based on the unacceptable consequences to the organisation of monitoring and surveillance. Such consequences include ill health, stress, and lowering of morale . The other type of reason concerns harm to employees, such as infringement of employees rights to privacy. Other harms relate to employees well being.

There is evidence that computer-monitored employees suffer health, stress, and morale problems to a higher degree than other employees (Aiello & Kolb, 1996). If it does, indeed, generate these sorts of problems, then these problems must be weighed against the benefits. It might be countered that if the problems are too great, then monitoring will not make organisations more efficient, and so the practice will stop. Alternatively, organisations that practice monitoring will not be able to attract good employees, and so will be forced to discontinue it. One weakness of this counter is that workers are not always free to pick and choose their employers, particularly in times and places of high unemployment. Many will almost certainly prefer to work under conditions that they do not like than to not work at all. Another flaw in the argument is that it is not necessarily true that practices that are detrimental to health and morale will lead to less efficiency, at least not in the short term. For example, forcing workers to work long hours without rest over extended periods could increase productivity in the short term, but lead to longer term health problems. A further problem pertains to trust. It would appear that monitoring is a sign of distrust , and perhaps employees who know that they are being monitored, and hence not trusted, will become less trustworthy, in which case they will require more monitoring. Superficially at least, it appears that monitoring could precipitate a breakdown in trust, which in the longer term would probably lead to a less efficient workforce. This is especially problematic in occupations that require high levels of trust, such as policing.

The moral objection to computer monitoring is based on the principle that a moral right cannot be infringed upon without very good reason. It would be rare that greater efficiency or profitability would constitute such a good reason. There clearly are times when a person s privacy rights, or rights to confidentiality, can be overridden. An unconscious and unconsenting hospital patient, for example, may need constant monitoring, but that is for the patient s own good. A prison inmate might also need constant monitoring, but that might be for the protection of the community. Surveillance and monitoring of employees, however, does not in most circumstances secure these fundamental rights to life and protection. A defender of computer monitoring might argue that the moral problem only arises if employees have no input into the establishing of the monitoring system, or if they are not fully aware of its scope and implications. If these conditions are satisfied, there is no moral problem, because the employee has, in effect, consented to the system s use by accepting employment under those conditions. While this has some initial attraction, on closer examination it is not so plausible. One reason is the same as that discussed in connection with health and morale. When unemployment is high, or if the person badly needs a job, there is not much force in consent. It is rather a case of economic coercion. A second problem is that even if people do consent to some sort of treatment, it does not follow that it is moral to treat them in that manner. Slavery cannot be justified on the grounds that some slaves may not have minded their condition too much if they knew nothing better, and if they had always been taught that slavery was the natural order of things. Likewise, violation of privacy cannot be condoned simply because some employees are willing to accept it.

What can be made of the argument that employee monitoring can be to the benefit of the employees themselves ? Their privacy is violated, but it is in a good cause. There are at least two potential benefits to employees. One is that monitoring can, if used properly, help them to improve their work practices. This might be true, but it would at best only justify short-term monitoring, and only with the employee s consent. Perhaps the techniques and satisfaction of clumsy lovers could be improved by information gained from spying on their activities, but that hardly seems to justify spying . A second benefit accrues to some workers; namely, hard working ones. Monitoring may help employers to get rid of dead wood (e.g., workers who are not doing their fair share of the work). This will not only be good for the employer, but also for the other employees. However, while none of us wants to support lazy and incompetent colleagues, it is not clear that this will not have countervailing effects, namely on the hardworking and competent workers also thus monitored. There could, of course, be limited and targeted monitoring where there was good reason to believe that particular employees were not meeting reasonable standards. This would seem to be a far more reasonable policy. However, this is clearly not general monitoring and surveillance of the kind being discussed here. Supporting such colleagues is not good, but violation of the right to privacy would, to many, seem even worse (DeTienne, 1993).

A stronger argument for surveillance is the control of crime in the workplace, especially theft, financial fraud, and other forms of corruption. Law enforcement agencies can have rights that override those of individuals in certain circumstances when it is in the public interest. Corruption and crime in the workplace are still corruption and crime, so some surveillance can be justified in order to apprehend culprits. Given that the central purpose of police organisations is to combat crime and corruption, crime and corruption within police organisations themselves is a matter of profound concern. Accordingly, the argument for monitoring and surveillance based on the need to combat crime and corruption has particular importance in relation to police organisations; monitoring and surveillance of police officers is necessary, given the need to guard the guards . I will return to this argument in Section 3.

A further argument in favour of employers rights to surveil or monitor is based on ownership; for example, it is held that because the system on which e-mail messages are sent is owned by the employers, they have a right to read any messages. But do they? The fact that two people are conversing in my house does not give me an automatic right to listen to what they are saying. But what if the two people are my employees? Does this make a difference? One argument that it does not might go as follows : All I am paying for is my employees labour. What they say to customers might be my business, but what they say to each other is not, if it does not obviously and directly harm the business. Employing people does not confer the right to monitor their private conversations, whether those conversations are face-to-face or via electronic systems such as e-mail.

It might still be argued that what one employee says to another employee might be my business as the employer, if their conversation is work related. But even this cannot in general be correct. Consider the following three situations. First, if the two employees are, say, doctors in a private hospital or police officers investigating corruption, then their work related conversation might need to be protected by confidentiality. Second, what an employee is saying to a customer might be protected by confidentiality, for example, in the case of a lawyer working for a large corporation or a police officer interviewing a whistleblower who is an employee of a tobacco firm. In these circumstances, a professional employee, in the wide sense of someone who has clients with whom they have a confidential relationship (e.g., a medical doctor, an academic, a lawyer, an accountant , a police officer) will need to be treated differently from a non-professional. Third, even non-professional employees need a measure of autonomy, conferred by privacy in the sense of non-interference and non-intrusion, with respect to one another and the public, if they are to take responsibility for their jobs and their performance in those jobs. Taking responsibility in this sense involves being left alone to do, or to fail to do, the tasks at hand. Workplace monitoring is a practice that requires much more examination. Employers need efficient and competent workforces. Employees have a responsibility to work to the best of their ability for the financial reward that they receive, but they do not forfeit their rights to privacy by virtue of being employees. Although workplace monitoring can be justified in some circumstances, privacy (and in some contexts, confidentiality) is a moral right, and as such there is a presumption against its infringement.

^{[ 2]} This is a later and heavily abridged version of material to be found in Miller (1997) and Weckert (2000).