A Solution to Privacy Issues in the Workplace
“Big brother is watching”: a slogan that acts as a constant reminder for the people in George Orwell’s dystopian novel 1984. This sentiment translates into the workplace as employers must scrutinize details of their employees’ lives. It is seen as a duty of the employers to do so with the purpose of preventing harassment in the workplace. But then arises the question of “where is the line drawn between lawful workplace surveillance and the invasion of employees’ privacy?” According to Mignin, Lazar, and Friedman (2002), “…most courts that have addressed the right to privacy have held that there is a very narrow sphere of workplace privacy for employees” (11). Mignin further elaborates upon the degree of an employer’s surveillance within legal boundaries by saying, “an employer’s intrusion into an employee’s zone of privacy must be particularly egregious before it rises to the level of illegal conduct” (11). This essay will be outlining some of the various privacy issues that occur in the workplace, both with clear boundaries and more gray areas. In addition to pointing out issues such as genetic testing, surveillance, and computer monitoring, previously suggested solutions will be discussed, as well as a proposed solution with sufficient data to support the claim. Proposing solutions that will create a clearer separation of personal business and work, a more secure way of managing results from genetic tests if they continue to gain popularity,
According to scu.edu, genetic tests are used in the screening of job applicants and employees through detecting the genetic makeup and the disposition towards diseases of the test subject. The results of genetic tests are not strictly work-related diseases, and can also be indicative of racial and ethnic background through genes present due to a predisposition. Santa Clara University’s website also predicts that as advances in genetic research and technology are made, the increase in availability of less expensive tests will result in an increase in popularity. While these tests may be deemed as a precautionary measure to protect future/current employees, the information achieved can be abused in a discriminatory manner. A valid point that the chapter provided by Princeton University makes is that if their genetic makeup did not affect the actual hiring into their job, coworkers can use the information against them, creating a hostile work environment.
A sizeable amount of privacy invasion issues are associated with employees’ technology use in the workplace. Although it is not to be unexpected that an employee’s personal business seeps into their work environment, the internet has made completing personal tasks or activities more accessible, therefore requiring employers to set limitations and regulate the activity to promote a better, well-focused work ethic. Whereas monitoring phone usage would have had to be a more calculated notion, computer-based communications are easily accessible and stored to be readily available to the employer. In their article, “Privacy, Technology, and Conflict: Emerging Issues and Action in Workplace Privacy,” Anthony Townsend and James Bennett explained the extent of surveillance of internet activity: “In addition to archiving the content of the employees’ active communications, the employer’s computer also monitors all of the information that employees retrieve using their web access.” (Townsend & Bennett). This amount of surveillance and scrutiny can cause morale in the workplace to decrease, as employees begin feeling less trusted by their employer, tense, anxious, and stressed.
According to “Introduction: Privacy in the Workplace”, the Fourth Amendment does not apply to the action of private sector employees, resulting in government employees appearing to have “a somewhat stronger claim for protection against electronic monitoring and surveillance” (“Introduction: Privacy,”). The article found on cyber.harvard.edu also offers actions that employees can take to protect their internet activity; while plausible, they are not complete fixes considering that there are no large restrictions on surveillance in a private sector. The solutions suggested include requesting more information about their privacy rights and encrypting emails. Not only can these solutions raise suspicion of the employee, but there is also little chance of success through the approaches without belonging to a union (“Introduction: Privacy,”).
With employee information being easily accessible, the risk of it being leaked rises; such information could vary from internet activity, to payroll, or even medical information. Townsend and Bennett argue that with more and more legal actions taking place in the protection of said information, laws like the current Health Insurance Portability and Accountability Act are being put in to place to place better protection and confidentiality upon medical information (201). The article “HIPAA Mighty and Flawed: Regulation has Wide-Reaching Impact on the Healthcare Industry” argued that while the HIPAA has achieved in gaining awareness of the issues with security of medical information, it lacks in providing “a provision that allows people to sue for violations” (Solove). The article also says that a major flaw in the HIPAA is the mass confusion of appropriate access of the medical data, resulting from incorrect educating and guidance on the matter (Solove).
An arguably invasive practice conducted during the hiring process is social media screening as part of a background check. Social media screening can be conducted formally, whereas the employer informs the job candidate of the checking of their social media accounts or requests the password to the accounts, or in an informal manner, in which the employer does not necessarily inform the candidate that the public search of accounts will be done. This investigation of a job candidate’s accounts allows employers to not only conduct verification of information given in the job application, but also gain more information about the person than what could be learned in an interview. However, the reality of this practice is that employers could also find incriminating information that they cannot use in the hiring decision. Gregory Saylin and Tyson Horrocks (2013) state that the increasing amount of states passing laws that prohibit employers from getting an applicant’s passwords is only a recent development (Saylin & Horrocks).
To eliminate allegations of discrimination interfering in the hiring process, some employers require non-decision makers to conduct the social media searches of the applicant; only passing information that is permissible for the hiring decision (Saylin & Horrocks). However, this existing solution proposes the risk of the employee conducting the search sabotaging the hiring process after learning particular information about an applicant. According to shrm.org, a company using social media screening used as part of a background check “needs to comply with the Fair Credit Reporting Act, including providing applicants with a disclosure that a background check will be performed and obtaining their authorization to proceed with the check,” (Saylin & Horrocks).
Another topic that is deemed problematic for privacy in the workplace is video surveillance of employees. In most cases, such an act of surveillance is conducted when an employer has developed suspicion of the employees’ actions when in private at their workplace. Issues arise when either employees are not informed of the surveillance, or they feel it is invasive when supposed suspicious behavior is not being captured yet footage is continuously recorded. In cases like this, the easiest course of action to avoid legal issues arising is to make sure there is clear communication between employer and the employees of what will be monitored and the reason for doing so.
In regards to internet activity-related privacy issues, I propose that websites that are strictly personal business be blocked on the company’s technology or internet server. This notion would be similar to how schools are able to restrict access to social media sites, as well as those with suggestive keywords. This solution provides a more concise separation of work and personal life with the purpose of increasing productivity by minimalizing distractions. This solution would work best in a workplace setting where employees leave for their lunch break, therefore enabling them to utilize that time for personal business. In fact, it is commonly seen in larger corporations that access to third-party sites are absolutely out of the question, as the available software on the work computers is restricted to only the necessary access portals including email, scheduling, and the programs of the company. With this solution, or its varying extremes, the clear communication of guidelines between employer and the employees is crucial.
To address the problematic genetic screening in the workplace, I propose that if tests continue to be used, there should be limitations and an increase in securing this medically confidential information. The results of the genetic screening should be communicated between doctor and patient first. Then, only results pertaining to work-related diseases that are required to better place the person in a job should be sent to the prospective employer. This would assist in the prevention of discrimination of medical history and predispositions that occur in the workplace. Furthermore, employers should be held more accountable if medical information unrelated to the work is leaked, subsequently affecting the job status of the employee, or leads to harassment of said employee. “The Americans with Disabilities Act protects medical information such that applicants and employees are not required to disclose certain medical information to employers. And once medical information is obtained by an employer, the ADA imposes strict limits on access to and disclosure of such information” (“Introduction: Privacy,”).
Works Cited
"Introduction: Privacy in the Workplace." Berkman Klein Center. N.p., n.d. Web. 17 Nov. 2018. <https://cyber.harvard.edu/privacy/Module3_Intronew.html>.
Mignin, Robert J., et al. “Privacy Issues in the Workplace:  A Post-September 11 Perspective.” Employee Relations Law Journal, vol. 28, no. 1, Summer 2002, p. 7. EBSCOhost, login.proxy01.shawnee.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=6637163&site=eds-live&scope=site
Princeton University. “Chapter 9: Application of Ethical Principles to Genetic Testing.” The Role of Genetic Testing in the Prevention of Occupational Disease, Congress of the U.S., Office of Technology Assessment, 1983, pp. 142–148, www.princeton.edu/~ota/disk3/1983/8317/831711.PDF.
Santa Clara University. "Read My Genes." Sustainability – Office of the Provost – Santa Clara University. N.p., n.d. Web. 12 Nov. 2018. <https://www.scu.edu/ethics/focus-areas/bioethics/resources/read-my-genes-genetic-screening-in-the-workplace/>.
Townsend, Anthony M., and James T. Bennett. “Privacy, Technology, and Conflict: Emerging Issues and Action in Workplace Privacy.” Journal of Labor Research, vol. 24, no. 2, Spring 2003, pp. 195–205. EBSCOhost, login.proxy01.shawnee.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=9152361&site=eds-live&scope=site.