LEG500 Assignment 2
LEG500 Assignment 2
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Date Created: 11/06/15
Running head ASSIGNMENT 1 ELECTRONIC SURVEILLANCE OF EMPLOYEES 1 Assignment 1 Electronic Surveillance of Employees Strayer University LEG500 Law Ethics and Corporate Governance Professor Benjamin M Shushan April 21 2011 ASSIGNMENT l ELECTRONIC SURVEILLANCE OF EMPLOYEES 2 Assignment 1 Electronic Surveillance of Employees Explain Where an Employee Can Reasonably Expect to Have Privacy in the Workplace Although the law on employee privacy rights is still developing various federal and state laws limit and define what employers can do when monitoring their employees Dillon Hamilton Thomas amp Usry 2008 Under federal and most state law there are areas where an employee has a reasonable expectation of privacy in the workplace Generally privacy in the workplace can reasonably be expected in the following three general areas First the area of where employees can reasonably expect to have privacy from their co workers is in their private workplace areas Courts generally recognize a reasonable expectation of privacy as to an employee s exclusive private office desk and file cabinets containing personal matters not shared with other workers Wilson 2006 Second in highly private areas such as restrooms break lounges locker rooms and places designated for health or personal comfort courts have generally recognized employees reasonable expectations of privacy The main reason is that activities carried out in these places are things that are not normally done in public They are private acts and the employee has a reasonable expectation of privacy during these activities Finally different kind of privacy that an employee can reasonably expect in the workplace would be of their personal records such as their background health status social security numbers and medical data Lieber 2007 This information is kept in the employee s private confidential employee folder in the Human Resources Department generally in a locked cabinet or other secured areas This ensures that no one other than the Human Resources Department can get access to the information other in the file At times special permission is ASSIGNMENT l ELECTRONIC SURVEILLANCE OF EMPLOYEES 3 granted for a manager to review the file for a specific reason along with the Human Resources representative Explain Whether It Makes a Difference If an Employee Is in an Open Area or in an Enclosed Of ce Yes it makes a difference if an employee is in an open area versus being in an enclosed office when specifically pertaining to an employee s level of privacy The main differences between an open space office and an enclosed office are summarized below First privacy in an open area is limited when it comes to conversations Open areas usually mean that the conversation is everyone to hear or be involved in Thus anyone walking pass may hear your conversation whether you mean for them to or not and also whether or not they intend to listen to the conversation or not This means that privacy is very limited because anyone can walk by and listen to a conversation in an open area Second other privacy is also difficult to obtain with an open space office An employee having a desk in an open area is unable to control the environment around him or her Brennan Chugh amp Kline 2002 They will be unable to prevent people from walking up behind them and observing what they are doing For example if a confidential call needs to be made it can be difficult With enclosed offices these things are more possible In an open area employees may feel uncomfortable being in such close quarters with their coworkers when confidential calls need to be made Finally an open space office can increase noise and thus cause distractions that lower employee productivity Maher amp von Hippel 2005 Open space offices are noisier and can be more chaotic than enclosed offices Employees are in one large area and phone conversations or ASSIGNMENT l ELECTRONIC SURVEILLANCE OF EMPLOYEES 4 conversations between employees will be overheard easily When there are several conversations happening at one time it can get quite noisy This can lead to employees becoming distracted which may lessen productivity In addition people passing to and fro can also cause distraction of employees In an enclosed office plan disturbances like this wouldn39t happen as much Explain If Herman s Need to Know Whether His Salespersons Are Honest Is a Suf cient Ground for Utilizing Electronic Surveillance It is not a sufficient ground for utilizing electronic surveillance that Herman needs to know whether his salespersons are honest Honesty is a basic trait and ingredient essential to a salesperson but not the only one Other traits are ingredients such as positive attitude respecting customers professional and proactive are important as well Any salesperson with these qualities has potential to be a good salesperson In this case Herman needs to know if his salespersons are honest He think that the reputation of the business may be damaged which leads to lost business if his salespersons are dishonest However this is not a sufficient reason to utilize electronic surveillance without an employee s consent or knowledge The privacy of the employees is being invaded if the employees are unaware of the monitoring The reasons are presented as follows In the workplace federal and state laws provide some protection to employee communications One of the first and most substantial pieces of legislation relating to electronic communication and privacy is the Electronic Communications Privacy Act EPCA of 1986 which was an amendment to the federal wiretap statute Halbert amp Ingulli 2009 The EPCA prohibits the interception disclosure or access of wire oral and electronic communications ASSIGNMENT l ELECTRONIC SURVEILLANCE OF EMPLOYEES 5 without authorization Cox Goette amp Young 2005 But there are several exceptions to the EPCA that give employers a means of bypassing personal privacy rights Where however at least one party to the communication consents to being monitored surveillance is permitted This is called prior consent exception Halpern Reville amp Grunewald 2008 Such consent can be expressed as in a signed form that stating that a specific employee consents to the surveillance in general or in specific circumstances or it can be implied as prior notice to the employees that such surveillance can and will be conducted Mishra amp Crampton 1998 Thus utilizing electronic surveillance is forbidden under federal law but providing a consenting individual with interception or accessing of messages is not However if electronic surveillance is used employers should notify employees in advance that they may be monitored and periodically remind employees of the policy This may keep employees honest Explain to What Extent an Employer Can Engage in Electronic Surveillance of Employees There is little specific regulation directly addressing the employees privacy rights when it comes to workplace surveillance As described above the ECPA forbids the unauthorized interception use and disclosure of any oral wire or electronic communication But the exception generally allows employers to monitor or intercept businessrelated communications in order to protect their rights or property Halpern Reville amp Grunewald 2008 An employer39s interest in monitoring his or her employees may con ict with the employees39 privacy interests The employees39 interests may be asserted in a tort action under common law for invasion of privacy Halbert amp Ingulli 2009 To succeed in such a tort action employees must show that they had a quotreasonable expectation for privacyquot and that monitoring ASSIGNMENT 1 ELECTRONIC SURVEILLANCE OF EMPLOYEES 6 conducted by the employer is quothighly offensive to the average personquot Smith amp Ta ba k 2009 In general if the employer can point to a legitimate and significant business reason for the surveillance then the court may decide that the employer39s need outweighs the employees39 interests in privacy Generally speaking the employer has the right to monitor places where the employee has no reasonable expectation of privacy such as work stations hallways work areas building exterior areas parking lots and common areas Wen Schwieger amp Gershuny 2007 Examples of other activities that employers have the right to monitor include telephone calls that are made or received using company telephones email messages that are to or from a work email address and intemet usage from company computers In addition safety and litigation issues also warrant workplace monitoring McMann 2007 However there are many different forms and boundaries that employers can engage in electronic surveillance of employees Laws vary from state to state on how far an employer can go to monitor employees The ECPA is the basis upon which right to privacy cases regarding electronic communications in the workplace are judged Employers must adhere to both the federal and state laws Explain to What Extent the Inclusion of Innocent Unaware Thirdparties in Such Surveillance Determine Whether It Is Legal With respect to the third parties such as customers in such surveillance they have to be informed that their conversations may be monitored and they must give at least implied consent to the monitoring As cited above the prior consent is an exception to the ECPA That is the prior consent exception makes it not unlawful to intercept wire oral or electronic ASSIGNMENT l ELECTRONIC SURVEILLANCE OF EMPLOYEES 7 communications where one of the parties to the communications has given prior consent to such interception Halpern Reville amp Grunewald 2008 In addition to inform employees that they will be monitored the employer also has a duty to inform customers that their conversations may be overheard during such electronic surveillance In both cases the duty to inform arises from the general requirement that no one s conversation can be electronically monitored without their consent Consent may be implied or actual If the third parties are informed of the eavesdropping and do not object then it is ordinarily assumed that the third parties consent However it is also possible for customers to seek tortbased remedies for privacy violations Hence to protect himself or herself from lawsuit an employer should inform customers that they are subject to surveillance and should create a surveillance policy to make a clear statement that the workplace is being monitored By doing this an employer can strongly defend again a privacy lawsuit ASSIGNMENT 1 ELECTRONIC SURVEILLANCE OF EMPLOYEES 8 References Brennan A Chugh J amp Kline T 2002 May Traditonal versus open office design A longitudinal field study Journal of Environment and Behavior 343 279299 Retrieved April 19 2011 from Academic Search Complete database Cox S Goette T amp Young D 2005 Workplace surveillance and employee privacy Implementing an effective computer use policy Communications of the IIMA 52 5 7 65 Retrieved April 20 from httpWWWiimaorgCIIMACIIMA 2052205720Cox6pdf Dillon T Hamilton A Thomas D amp Usry M 2008 June The importance of communicating workplace privacy policies Employee Responsibilities amp Rights Journal 20 2 119139 Retrieved April 18 2011 from Business Source Complete database Halbert T amp Ingulli E 2009 Law amp ethics in the business environment 2010 custom edition 6th ed Mason OH SouthWestern Cengage Learning Halpern D Reville P amp Grunewald D 2008 June Management and legal issues regarding electronic surveillance of employees in the workplace Journal of Business Ethics 802 175180 Retrieved April 20 2011 from Business Source Complete database ASSIGNMENT 1 ELECTRONIC SURVEILLANCE OF EMPLOYEES 9 Lieber L D 2007 Workplace privacy between coworkers Employment Relations Today Wiley 342 107114 Retrieved April 18 2011 from Business Source Complete database Maher A amp von Hippel C 2005 Individual differences in employee reactions to openplan offices Journal of Environmental Psychology 255 219229 Retrieved April 19 2011 from Academic Search Complete database McMann P 2007 Employee privacy in the workplace Retrieved April 20 2011 from httpwwwstaffmonitoringcomemployeeprivacyworkplacehtml Mishra J M amp Crampton S M 1998 Employee monitoring Privacy in the workplace SAM Advanced Management Journal 633 414 Retrieved April 20 2011 from Business Source Complete database Smith W P amp Tabak F 2009 November Monitoring employee emails Is there any room for privacy Academy of Management Perspectives 23 4 33 48 Retrieved April 21 2011 from Business Source Complete database Wen H J Schwieger D amp Gershuny P 2007 Internet usage monitoring in the workplace Its legal challenges and implementation strategies Information Systems Management 242 185196 Retrieved April 21 2011 from Business Source Complete database Wilson D B 2006 An employer s guide to hidden cameras in the workplace Retrieved April 18 201 1 from httpwwwrccomdocumentsarticlepdf
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