EAVESDROPPING EMPLOYERS : A TWENTY FIRST CENTURY FRAMEWORK FOR EMPLOYEE MONITORING ABSTRACT

THE
EAVESDROPPING
EMPLOYER:
A TWENTY-FIRST
CENTURY
FRAMEWORK
FOR
EMPLOYEE
MONITORING
ABSTRACT

The twenty-first century continues to usher in new and increasingly-powerful technology.
This technology is both a blessing and a curse in the employment arena.

Sophisticated monitoring software and hardware allow businesses to conduct basic business transactions, avoid liability, conduct investigations and, ultimately, achieve success in a competitive global environment.

Employees can also benefit when monitoring provides immediate feedback, keeps the workforce efficient and focused and discourages unethical/illegal behavior. The same technology, however, allows employers to monitor
every detail of their employees’ actions, communications and whereabouts both inside and outside the
workplace. As more and more employers conduct some form of monitoring, the practice will shortly
become ubiquitous. This trend is problematic because excessive and unreasonable monitoring can: (1)
invade an employee’s reasonable expectation of privacy, (2) lead employees to sneak around to conduct
personal activities on work time, (3) lower morale, (4) cause employees to complain and, potentially,
quit and (5) cause employees to fear using equipment even for benign work purposes.

The American legal system’s effort to protect employee privacy is a patchwork of federal and state laws
combined with the common law tort of intrusion upon seclusion. This regime is not properly equipped
to defend against excessive invasions of privacy that come from increasingly-sophisticated monitoring
practices. This article analyzes the problems with the current monitoring regime, evaluates the top
contemporary monitoring techniques and proposes a framework around which Congress can craft new
and more effective legislation dealing with employee monitoring. This framework classifies the top
contemporary monitoring practices into four categories designed to balance employee privacy with
enterprise protection - protection that occurs in the form of completing business transactions, protecting
the company from liability and conducting or assisting in internal and external investigations. The
categories form a sliding scale able to dictate the minimum amount of monitoring necessary to achieve
the enterprise protection sought by management without excessively invading employee privacy.

https://fpf.org/wp-content/uploads/2010/07/The_Eavesdropping_Employer_%20A_Twenty-First_Century_Framework.pdf