The battle for workplace privacy is over; privacy lost. The average American, aware of it or not, is caught on camera more than seventy-five times a day. That we are surrounded by surveillance technology is now a fact of modern life.
As surveillance technology has become economical, its presence and use has multiplied. It has even been suggested that a world with greater surveillance would be a more pleasant world to live in. But if one thing is for certain, “the intersection of technology and behavior [is] highly complex and unpredictable.”
POLICE USE OF BODY CAMS
Police use of body cams, “regarded as a novelty just a few years ago, has quickly grown in acceptance.” In the last two years alone, the U.S. government has invested more than $23 million in body cams for state and local police departments. New York City Mayor Bill de Blasio has gone so far as to vow that every patrol officer in the Big Apple will be wearing body cams by the end of 2019.
Why the swift adoption? First, it provides the American people with a new “source of truth,” much like fingerprint evidence did in the late 19th century. Second, it serves as a new, albeit controversial, method of promoting increased transparency and ensuring the proper application of police functions.
We the People, Have a Serious Problem
Much of the interest in the use of body cams stems from “a growing recognition that the United States has a real problem with police violence.” In 2011, police officers killed two people in England and six people each in Germany and Australia. That same year in the United States, according to the FBI, police officers killed 404. What’s more, that number counted only “justifiable homicides,” and was “comprised of voluntarily submitted data from just 750 of 17,000 law enforcement agencies.” Efforts by journalists to compile more complete data have resulted in estimates more than double the official count reported by the FBI.
The August 2014 shooting of Michael Brown in Ferguson, Missouri (as well as the deaths of Eric Garner on Staten Island, Walter Scott in North Charleston, Tamir Rice in Cleveland, Laquan McDonald in Chicago, and Alton Sterling in Baton Rouge) and the demonstrations that followed placed greater attention on the issue of police violence in America and intensified discussions around the potential of body cam technology.
Are Body Cams a Cure-All?
Body cams are by no means a cure-all. However, initial studies have shown promise. One study to receive nationwide recognition as “the only scientific study” of how body cams affect police interaction with the public was written by Police Chief Tony Farrar of Rialto, California.
During the 12-month Rialto study, use-of-force by police officers wearing body cams fell by 59 percent. That’s not all – citizen complaints against officers fell by 87 percent in comparison to the previous year’s totals. Other studies have demonstrated that the results in Rialto were not an aberration. In Mesa, Arizona, use-of-force complaints fell by nearly 75 percent for officers wearing body cams and, in San Diego, California, overall misconduct allegations fell 43 percent over a period of three years.
The benefit of body cams doesn’t only extend to the public, it extends to the officers wearing them as well. In departments that have deployed body cams, the number of allegations left unresolved due to lack of evidence have fallen and the number of officers exonerated of misconduct allegations has increased.
OTHER PROFESSIONS’ USE OF SURVEILLANCE TECHNOLOGY
“The real danger is the gradual erosion of individual liberties through automation, integration, and interconnection of many small, separate record-keeping systems, each of which alone may seem innocuous, even benevolent, and wholly justifiable.” -U.S. Privacy Study Commission, 1977
Police officers aren’t the only professionals adopting this burgeoning technology in their practice.
Body Cams: Coming to a School Near You
How would you react if I told you that your fifth grade honor roll student is under regular video surveillance? With bullying and violence being a growing concern in schools across America, it shouldn’t surprise you that education is very likely the next profit-driving vertical for body cam sales.
Body cams are already in use in some schools across the United States, primarily by school resource officers and education administrators. District-wide deployments are rarer, mostly due to the volume and costs associated with a roll-out to front-line educators. Yet, multiple studies have demonstrated that teachers would be willing to wear body cams while instructing their students.
A 2017 survey of more than 600 teachers, conducted by the Times Educational Supplement, found that one-third of respondents were in favor of teachers wearing body cams. Of those in favor, 33 percent would wear the technology to monitor and collect evidence of student behavior; 20 percent would do so to improve their teaching.
Schools already leveraging or considering making the investment in body cam technology diffuse privacy concerns by vowing that they will only be used when it is “legitimate, proportionate and necessary.”
Healthcare & Financial Institutions
Sometimes, we don’t know what we don’t know, which is why we measure instead of guess. At least, that seems to be the philosophy of Sociometric Solutions, a startup that advises organizations in the technology, finance and healthcare industries using sensor-rich identification badges.
Envision an ID badge equipped with microphones and GPS capabilities. One that could collect data on the wearer’s tone of voice, posture and body language, as well as who they spoke to, where and for how long. Well, the technology already exists and it is currently deployed in more than a dozen organizations with thousands of employees.
Let’s scale back to an example a bit less Orwellian, but still controversial – Florida Hospital Celebration Health. In select units of Florida Hospital Celebration Health, nurses and patient care technicians wear badges equipped with sensor technology capable of monitoring their location over the course of their shift. The system registers how often a nurse or technician visits a patient’s room or a nurses’ station. Creepy, right? Maybe not. The technology enabled a few significant discoveries, primarily that the hospital had been understocking medicine at nurses’ stations, compelling nurses to travel further to retrieve necessary supplies. The technology, and the data it collected, helped to improve supply procedures and service efficiency.
PRIVACY IN THE WORKPLACE TODAY
“Whenever you do a thing, act as if all the world were watching.” -Thomas Jefferson
Privacy is a cherished value for most people, but make no mistake, there is very little of it in the American workplace. If there is a legitimate business reason that outweighs reasonable expectations of privacy, you might be surprised at just what employers can legally do.
Surveillance in the Workplace
One third of all employees are under surveillance in today’s workplace. In the digital age, the prolificacy of modern surveillance practices in the workplace is nothing short of astonishing.
Employee monitoring is becoming the norm, whether secretive, evident or under the guise of an “employee wellness” program. It is being used to improve performance, enhance productivity, ensure quality, protect trade secrets, decrease costs, manage risks, monitor inventory – the justifications are endless. In non-union environments, for reasons we’ll get to shortly, surveillance is widespread and employee opposition to surveillance is minimal.
Organizations have every right to improve efficiency, and some oversight of the workforce is undoubtedly necessary. Modern technology enables pervasive employee monitoring and, while nearly every aspect of a typical workday lends itself to measurement, employers aren’t asking “Should we measure it?” They’re asking “Can we?”
Privacy Under Federal Law
Under federal law, there is no explicit prohibition or limitation against employers monitoring the workplace, except in the case of monitoring American workers engaging in protected concerted activity under the National Labor Relations Act. While elements of the Electronic Communications Privacy Act (i.e., federal wiretapping laws) broadly apply to workplace surveillance, the Act lacks specificity, leaving it to the states to define what constitutes acceptable electronic surveillance practices in the workplace.
Privacy Under State Law
Prohibition or limitation of employer surveillance practices largely depend on state law. State legislation determines the extent to which workplace surveillance is considered legitimate and therefore lawful (e.g., California prohibits two-way surveillance mirrors in restrooms and locker rooms; Connecticut prohibits surveillance equipment in areas purposed for employee rest or comfort). “[I]n the absence of opposing statutory law, national or local[,]” common law applies.
Privacy Under Common Law
Virtually all states recognize a common law claim for invasion of privacy. In the absence of opposing statutory law, courts examine two competing interests in determining whether an employer has violated an employee’s right to privacy: (i) the nature of intrusion upon reasonable privacy expectations, and (ii) the employer’s motives, including legitimate business reasons for conducting surveillance.
Aside from privacy-sensitive locations in the workplace, such as bathrooms or personal care rooms, employees are widely considered to lack a reasonable expectation of privacy once they enter the office. In fact, employees may not have a reasonable expectation of privacy even in circumstance where the employer has promised it (see Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), where a court held that there was no invasion of reasonable privacy expectations even when Smyth’s employer assured its employees that their email communications through the company’s email system would be private and confidential).
THE MANY WAYS YOUR EMPLOYER SURVEILS YOU
“Our privacy is being attacked on multiple fronts.” -Tim Cook
Work Phone, Computer & Other Devices
What exactly can your employer monitor on your work devices? What’s on your computer screen. Your Internet browsing history. Your saved files. How long your computer has been idle. Your keystrokes. What is written in your emails and online chat conversations. Your phone calls. Your voicemails. What numbers you’ve dialed. How long your telephone conversations lasted. Voicemails and emails you have already deleted. Your contacts. Your pictures. Your videos. Your text messages. Your location.
Every employer-provided device is a window into how you work and who you are.
Consider the findings of the 2007 Electronic Monitoring & Surveillance Survey conducted by the American Management Association (remembering that those findings were a decade ago, before colossal advances have been made in technology since that time): 82 percent of managers use some sort of electronic monitoring in the workplace. Employer surveillance by device, even a decade ago, was staggering: 63 percent of employers monitored Internet usage, 47 percent stored and reviewed employee emails, 45 percent monitored time spent and numbers called, 36 percent reviewed employee computer files, 16 percent recorded phone conversations, 9 percent stored and reviewed voicemail messages. Fast-forward to the present day, and some employers are even leveraging “sentiment analysis” (also referred to as “opinion mining”), language processing tools that can review text communications (e.g., email, instant messages) to interpret the sender’s underlying thoughts and feelings.
The bottom line is that employees should outright assume that any communication or activity using a device provided by an employer is being monitored and is not private. They should assume that, even if they delete the data or mark it as private. “Despite the reassuring language about the need for balance, no employee has ever won a case against his or her employer for computer monitoring.”
Video footage has been presented as an unbiased source of truth. “It has no motive to lie and no stake in the outcome.” Employers commonly deploy this technology in the workplace, and their justifications are many: safety, security, compliance, theft prevention, productivity monitoring. So long as the practice is supported by legitimate business reasons and does not violate reasonable privacy expectations, employers are generally within their right to deploy this technology in the workplace, with or without notice to their employees.
Research conducted by the American Management Association found that more than half of organizations surveyed use video surveillance technology in their workplace, and while the majority of organizations using video surveillance do so for reasons of safety and loss prevention, 16 percent of organizations do so to monitor and measure employee performance.
Global Positioning Systems (GPS)
While few courts have addressed employer use of global positioning systems (GPS), most have held that the practice is permissible to track employer-owned equipment. Some human resources information systems (HRIS), including Paylocity’s, even have functionality such that enables employers to track an employee’s coordinates when they clock in from a mobile device, allowing the employer to confirm that the employee was indeed onsite when they did so. By extension of this surveillance practice to company vehicles, employers could very easily monitor how fast employees are driving or how long of a break they are taking.
The vast majority of laptops today come equipped with webcams. An employer that provides a company laptop is, technically speaking, entirely capable of activating this technology, even outside of the office, with employees having no way of knowing one way or the other. Consider the fact that telecommuting has become a prevalent workplace practice. According to Gallup, 37 percent of American workers indicated that they have telecommuted, with the average worker telecommuting two days per month. For those employees embracing the benefit of working from the comfort of their own home, that means this technology is a window into a place that even police need a warrant to search due to constitutional constraints.
“It is impossible to determine how often this abuse occurs,” writes Lewis Maltby, President of the National Workrights Institute (NWI). “Employees have no way of knowing that the webcam in their laptop has been activated. Employers are not required to disclose this information and no surveys have been conducted.” Maltby notes that, “It is an open secret among IT professionals that they read other employee’s e-mail for fun. The opportunity to secretly watch an attractive coworker undressing is a temptation some would find irresistible.” Maltby draws on a recent controversy in Pennsylvania where an IT tech was caught activating the webcams of more than 1,000 laptops issued to local high school students and sending screenshots to district administrators. The FBI conducted an investigation into the incident and, concluding no law had been broken, declined to bring charges.
Today, 25 percent of employers lack a written policy regarding employee surveillance by their IT teams. Of the 75 percent that do have a written policy, research conducted by the NWI has yet to find a single employer with policy enforcement procedures. “Policies are only as good as [their] disciplinary procedures.”
Social Media Monitoring
At least 77 percent of all employers Google their employees and job applicants, and 35 percent of employers have terminated employees or rejected job applicants because of information they found on the Internet. Generally speaking, your employer can fire you for posting content deemed inappropriate or in opposition to its legitimate business interests. Recall though, that Section 7 of the National Labor Relations Act might apply if the content posted falls under the umbrella of “protected concerted activity” (e.g., protesting working conditions might be protected, while griping about your $#%! of a boss might not be).
Postal Mail Delivered to the Office
Your employer may open mail addressed to you at your workplace. While Federal law does prohibit obstruction of mail delivery, postal mail is deemed “delivered” when it reaches the workplace. As such, an employer does not violate the law against obstruction by opening an employee’s personal mail – even if it’s clearly marked as “personal” or “confidential” – if it is addressed to the employee at the employer’s address.
Employee Wellness Programs
Employee wellness programs are undoubtedly the next frontier for pervasive employee surveillance. More than two-thirds of all U.S. employers offer some type of wellness program. Wellness programs are often designed to promote employee health, but are often implemented to increase productivity and reduce claims. Employees participating in their employer’s wellness program may “unwittingly be sharing too much information.” Some employers are using wellness firms to gather exorbitant amounts of data to predict which employees might be at risk of certain medical conditions, including pregnancy.
In addition to comprehensive medical exams and family history questionnaires, wellness programs might collect information from wearable devices, often used to track exercise and sleep patterns. By law, the wearable worn by an employee wellness program participant remains the property of the employer, enabling the employer to access the data collected at any time, without the permission of the employee. Not to mention that the gamification of personal health pursuits normalizes and incentivizes increased surveillance, advancing the conceit that surveillance by way of wellness programs is in your best interest, ignoring altogether the cost to participants’ privacy expectations.
As it stands today, there are “insufficient protections for employee health data,” leaving American workers highly vulnerable to privacy invasion and employment discrimination. Worse, many employers are unaware of what wellness program vendors may do with the data they’ve collected. The Health Information Portability and Accountability Act (HIPAA) requires notice and the consent of the patient before health information acquired by a healthcare provider is transferred to third parties. That’s not the case with private, for-profit vendors not associated with a health insurance carrier. Thus, information collected by entities not considered a “healthcare provider” are free to sell this very personal information to third parties without informing employees, dramatically increasing the vulnerability of wellness program participants.
RECONSIDERING THE BALANCE
“Privacy matters. Privacy is what allows us to determine who we are and who we want to be.” -Edward Snowden
The raison d’être of employee surveillance programs is to protect and enhance the enterprise. Whether employees should have a reasonable expectation of privacy in the workplace remains an ethical dilemma that organizations face.
Benefits of Employee Surveillance
A number of benefits to employer surveillance programs undoubtedly exist, and we’ll examine them in brevity.
First, protecting the enterprise. Whether implemented to avoid the disclosure of trade secrets, limit legal liability or enhance the physical security of the workplace, surveillance programs help manage organizational risks.
Second, advancing the enterprise. Organizations have every right to improve operational efficiency, and employee surveillance programs play into that equation. Consider the case of Florida Hospital Celebration Health, and how they improved supply procedures and service efficiency. Surveillance technology has the ability to improve productivity, evaluate performance, simplify timekeeping and serve as a training and development tool.
And Now, For the Concerns
The line between appropriate and intrusive workplace surveillance might not always be clear, and surveillance for the purpose of advancing the enterprise can have the opposite effect. It has even been suggested that workplace surveillance in the modern era has “moved beyond a legitimate interest in productivity to shaping individual behavior.” In reconsidering the balance, employers are challenged to consider asking “Should we?” instead of “Can we?”
First, humans aren’t perfect, and neither is surveillance technology. Workplace surveillance technology does not always fulfill its promises. In many instances, it can provide a useful yet incomplete record of events. There very well might be a contrast between what results people expect from technology and the results that technology can actually deliver.
Second, “[i]t can create an environment of distrust that may impact employee performance and retention,” writes Angie Mohr, a blog writer at Intuit. “If an employee has to be concerned about every motion monitored…the ultimate result may be less productivity.”
Third, it can result in an inferior product or substandard work. Too much surveillance just might incentivize employees to “beat the system.” As Carl Botan, of Purdue’s Center for Education and Research in Information Assurance and Security, explains, “Unfortunately, a common issue with quality improvement programs – regardless of industry – is that improvement is invariably measured by quantitative data. And when employees know they’re being monitored, they tend to believe that the boss is more concerned about the quantity of work rather than quality.”
Fourth, misuse. The existing inequalities reflected in the dynamics of the employer-employee social structure lends itself to potential tampering or abuse of surveillance technology or the data it collects.
Fifth and finally, privacy and policy. Employers are collecting an exorbitant amount of data about their employees and not only is there insufficient protection of this data today, the vast majority of employers lack comprehensive, well-defined surveillance program policies or frameworks for enforcement of said policies. Without a robust and enforceable framework to protect individual employees, these programs become surveillance for surveillance’s sake.
IN THE END, PRIVACY MATTERS
“The right to be let alone is indeed the beginning of all freedom.” -Justice William Orville Douglas
Surveillance technology is enabling employers to monitor and measure their workforce like never before, with the promise of advancing how organizations perform in the modern era. The raison d’être of workplace surveillance programs is to protect and enhance the enterprise, but every organization with or considering such a program must define what that means to them and to their workforce. Confidence in workplace surveillance programs can only be had when robust and transparent frameworks are coupled with good technology. Even then, instead of asking “Can we measure it?” employers are challenged to ask “Should we measure it?”