Introduction
It is evident that social media sites such as Twitter and Facebook will remain an important part of communication for today’s generation. Most business transaction and social discussions are currently carried out through online platforms thus making social networking an essential link between people, especially employees and employers. Employers, through employee cooperation, have ripped enormously from the usage of social networks in orientation, training, and product improvement.Regardlessof these gains, social networks and other information technology advancements such as GPS present serious challenges when used in screening and monitoring employees. This paper discusses employee monitoring in light of both legal and ethical perspectives and provides recommendations on how employers can find amicable solutions to the challenges presented by this undertaking (Mello, 2012).
Employee Monitoring
The increase in the internet usage, connection to the GPs devices, and the participation in the social mediahave elicited heated debate concerning employee monitoring and the right to privacy. On the other hand, employers have been worried about the misuse of bandwidth and computer resources, cyber threat, legal liability, and associated low productivity associated with increased internet use by the employees. Employers are concerned with the legal liabilities that they could be predisposed to from the employees’ internet usage and the security concerns stemming from the infringement of the company’s rights and secrets.
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As such, investment in information technology by companies has tremendously increased purposefully with the aim of safeguarding company secrets and promoting employees productivity and ensuring customer satisfaction. As reported by Computer Economics Inc. (2012), in 2011, companies invested approximately $7,300 in information technology. Such investment was seen as an effective strategy of monitoring employee online activities thus protecting the companies against unlawful actions and decline in productivity. The legal and confidentiality concerns pertaining to employee monitoring in the US are determined by the United States General Accounting Office (GAO). GAO thus recognizes the legality of employee monitoring with the consideration of various state and federal decrees (US General Accounting Office, 2002).
The GAO does not outline the ethical issues pertaining to employer-based surveillance despite the legality of employee monitoring. Therefore, apart from considering the legal perspectives of employee monitoring, one must explore the ethical issues entailed. This is in light of the fact that employers should be in a position to balance the benefits of employee surveillance and the downfall of invasion of the workers right of privacy. Conversely, advances in information technology have made improbable to keep this balance. As a result, both the government and companies are facing several privacy issues related to employee monitoring. For instance, most employees and citizens fear that their privacy is violated when either the government or companies access their emails and personal records from the internet. Through computer monitoring such as application of GPS technologies, most companies are able to know about the whereabouts of their workers (Towns & Cobb, 2012).
In addition, computer matching allows employers to retrieve and synthesize information from different computers and other electronic sources with the aim of enhancing their advertising services thus gaining access to employee records and personal data. Another way of infringing the employee right of privacy is common among companies and states that unlawfully access workers personal details such as credit card numbers, email-addresses, and phone numbers with the view of developing workers profile.
Ethical Concerns in Employee Monitoring
Ethics govern the people’s behaviors and the reasons behind their action. Ethics are important in addressing new situations or situations that have proven ungovernable by the existing laws such employee surveillance. Before delving into ethical theories explaining employee monitoring, it is vital to explore the ethical benefits and downside of employee monitoring. There are several ethical benefits of employee monitoring including facilitation of recruitment services, provision of vital information on employees, ensuring accuracy of employee data, establishing employee misconduct, marketing, and sharing of political opinions.
Most employers monitor their employees to prevent the misuse of the company resources, company time, and preserve their image (Reynolds, 2012).
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According to the study by Yerby (2013), most employees engage in unproductive and unethical practices such watching pornography while at work. The study points out that the word “sex” was the top rated search item on most company computers followed by “nude”, “xxx”, and “playboy”, among others. The study results revealed that about 70% web search for “sex” and “nudity” occur from Monday to Friday between 8 am and 5 pm. Yerby (2013) additionally indicate that about 60% of firms reported to have responded with strict disciplinary measures against misbehaving employees, with over 30% of firms terminating workers for internet abuse.
The study mentions particular examples of firms that took measures to curb employees’ irresponsible internet use for searching explicit sexual contents. Dow Chemical Company fired 50 employees and suspended additional 200 employees for sharing and keeping sexually explicit contents and sadistic emails. More than 20 employees were suspended from the New York Times for forwarding emails with unsuitable and insulting content. Other companies, which have also taken drastic measures to curb employees’ unethical use of the internet, include AT&T, Apple Inc., and IBM, citing that their employees in their eight-hour working days spend more than 347 days compounded browsing pornographic sites (Yerby, 2013).
Ethical Benefits and Disadvantages of Employee Monitoring
As reported by Rosen (2010), nearly 75% of firms rely on the web and social network sites such as LinkedIn and Facebook in their employee recruitment and appointment services. Job seekers also rely on social networking sites and company websites as a repository for their academic and experiential data. As such, these sites serve the common good of connecting employers with the right and qualified prospective workers. Social networking sites are also an important avenue through which employers can monitor formal and non-formal behavior of employers in a bid to safeguard other workers and the company’s reputation. Cross-referencing of employee information from different online databases also helps employers in verifying accuracy of curriculum vitae (CV) and other vital information.
Employee monitoring also presents the ethical benefit of uncovering unethical behaviors that may be detrimental to the employees and company’s wellbeing. Employers are able to spot vices such as cyber bulling, sexual harassment, obscenity, gender based discrimination, access to pornography, and violation of copyrights, among others. As such, employers are responsible for taking the correct disciplinary action in handling such behaviors. If left unchecked, employees’ misconduct in online activities can lead to serious consequences such as hacking of the company’s website and lawsuits from other companies whose privacy rights have been violated (Yerby, 2013).
Other ethical benefits of employee monitoring occur in marketing and politics. Many firms such as the Amazon, Apple and Google Inc use online sites to market their goods and services. They create online communities in sites such as Twitter and Facebook where their clients can post comments and enquire about their products. Online social networking sites have also been used for political reasons, for instance, by employees and clients to air their grievances against poor products and unfair treatment by the company officials. They are also an essential platform against oppressive political forces; for instance, most citizens from Columbia resorted to online campaigns to fight against the Revolutionary Armed Forces of Columbia (Yerby, 2013).
Apart from the aforementioned ethical benefits, employee monitoring creates a number of ethical drawbacks for both the company and employees alike. For instance, information gathered from social networking monitoring does not guarantee accuracy. This is due to lack of verification details in most websites and unclear context of several online discussions. The information gathered from social sites may also suffer from subjectivity and biasness. In addition, employers may also face ethical concerns by relying on irrelevant information on employees’ bio-data such as gender, age, and race (Reynolds, 2012).
Ethical Theories
There are several ethical approaches for addressing the quandary of employee surveillance. Among the ethical theories, the rights approach and virtue ethics standout in their explanation of dilemma faced by employer and employees in surveillance.
The Rights Approach
The rights approach helps individuals to establish the ethicality of their behaviors or actions. This approach suggests that an ethical conduct is identified by its ability to safeguard the ethical rights of the affected individuals. According to the rights approach, employees have the right to choose, to know what is right, and not to have these rights violated. Employee monitoring is therefore immoral since it violates most of the rights covered under the rights approach. For instance, it infringes on employees’ right to choose what is important for them. Employees’ right of choice is violated when their emails and online participation are monitored and they are tracked by GPS tools. Even though companies are entitled to protecting their interests, it is unethical to force employees to conduct themselves in a particular manner through shadowing. As an alternative, employers should clearly outline employee code of conduct and allow them to make their own choices (Yerby, 2013).
Besides informing employees that they are constantly surveyed, employers should also inform employees of the degree surveillance conducted at workplace in both online and offline platforms. This includes clear explanation for the need to compile and assess employees’ emails via email monitoring software. If monitoring is to be effected, the employees have a right to be informed about the company’s policy on applying such software.
Employee monitoring also violates the right to free speech, an essentialand crucial right for all Americans. The conducts in the private sector in terms of freedom of speech are not addressed by the First Amendment allowing employers to put some restriction on employee communication. Even though such act is not legal it is still immoral. Therefore, as required by the rights approach, employers should emphasize on boosting employee self-confidence and free speech rather than financial gains (Reynolds, 2012).
Virtue ethics
Virtue ethics is another moral principle focusing on the development of ethical behavior. According to this approach, morals are not dependent on regulations but rather by the conception of an individual’s character.It is therefore demanded that companies are supposed to be guided by empathy, equality, kindness, and sincerity, instead of rules and regulations on what individuals ought or ought not to do. Individuals espousing virtue of ethic thus motivate others to make a better society. From the perspective of virtue ethics, employees ought to have the right to privacy. Firms should be able take this fact into consideration by recognizing that workers are aware of their action and display exemplary characteristic traits. As a result, employee monitoring is uncalled for since employees manners and disposition are in line with the conducts of a “moral” individual. According to Reynolds (2012), virtue ethics focuses on decision-making that is dependent on community recognized customs and how a person’s choice are understood by the society.
Utilitarian Theory as a Chosen Rational Approach
According to Reynolds (2012), utilitarian ethics focus on what “has the best overall consequences for all people who are directly or indirectly affected” (p. 21). This theory explains that a moral action is one whose benefits outweigh the negative consequences. From this theory, most business would cite the benefits of monitoring to the stakeholders. Employers would cite the benefits of monitoring to safeguard the safety of the company, majority of employees affected by cyber-loafing, and clients at the expense of few employees whose rights are curtailed.
Several stakeholders should be involved in coming up with employee monitoring strategy. A significant stakeholder is the employee whose conduct is monitored. The administration is another category of stakeholder responsible for monitoring employee activities and enforcing company rules and steering decision-making process. Other individuals such as the shareholders constitute the third category of stakeholders who are directly or indirectly affected by the company’s actions. Finally, the general public forms an important category since companies have high regards for general public opinion (Yerby, 2013).
Even though utilitarian theory follows an egalitarian approach it is not devoid of criticisms. For instance, it has been criticized that the long-term effect of taking a utilitarian action cannot be ascertained. Another criticism comes from the standard used in weigh the good and the evil associated with organizational behavior. This is evident in cases where there are majority of employees who are unaware of the peril of monitoring thus concur with the company that it is a common good. However, the fewer employees who stand by their rights are labeled as dissidents hence harshly treated by the majority (Yerby, 2013).
Utilitarian theory, however, presents the most rational framework as described by Reynolds (2012) since it considers the needs of all stakeholders. This view is echoed by Martin (2012) who expresses the teleological perspective by referring to it as “best understood by considering their goals” (p. 437). According to Martin (2012), utilitarian theory demands that workers should not abuse their offices or misuse company resources and predispose the company to lawsuits. Utilitarian theory is comparable to Emanuel Kant’s deontological (or reason-based) approach that states that “ends justify the means.” As explained by Martin (2012), deontological theory is based on the notion that “reason demands consistency and rejects contradiction” (p. 435). Thus, ethical employee surveillance should suit utilitarian approach by considering the best result for many people and be consistent with Kant’s theory of ensuring equality in all circumstances.
Fairness Approach
Fairness theory explains that decision-making should focus on equal distribution of profits and “burdens” in an organization. Common Good Approach is different from utilitarian theory since it asserts the need for fairness in handling employee-employer relationship. As noted by Reynolds (2012), Common Good Approach requires that decision-making or conduct be considered in the context of “common set of values and goals” for the organization and everyone who relies on them (p. 21).
Legal Issues
Globally, employee surveillance continues to be a major legal and ethical concern. In the European Union, surveillance is only justifiable in extraordinary situations, for example, when an employer suspects an employee of engaging in an unlawful act. In the United States, issues pertaining to employee surveillance are handled by the National Work Rights Institute and the American Civil Liberties Union (Yerby, 2013).
The aftermath of 9/11 saw many firms intensifying the security of their workplace environments consequently affecting regulation governing workers’ privacy. Under the USA Patriot Act, H.R. 3162, the Congress ratified laws which considerably widened the extent of federal electronic monitoring regulations by including abuse felonies, computer fraud, and terrorism offenses (Reynolds, 2012).
However, to prevent against the violation of privacy, workplace surveillance is restricted by the common laws and the Electronic Communications Privacy Act (ECPA) (18 U.S.C. § 2511 et. seq.). As an extension to the earlier Wiretap Act, the ECPA now governs the surveillance of online communication like emails besides wired and oral communication. It should be noted that the ECPA bars the deliberate surveillance except in cases where the employer is able to prove that the company has justifiable reasons for surveillance. The Act also permits surveillance in situations where the employees have fully consented to the procedure. As evidenced in the Hewlett-Packard inquiry it was established that without the client’s warrant the only means for acquiring personal information was going through an individual’s trashcan (Yerby, 2013).
Another regulation breached by employee surveillance is the Sarbanes-Oxley Act of 2002. This law was formulated as a rejoinder to several financials scams that had hit major conglomerates. For instance, in 1999, a worker from PairGain Technologies, Inc. was indicted for falsely reporting that the acquisition of PairGain was overrated. This had the possibility of directly breaching Sarbanes-Oxley Act which outlaws the inflation of the firm’s stock price.
In the process of addressing of a number of risks, employers should be cognizant of the legitimate checks and controls overriding the strategies of employee surveillance. Most employers tend to espouse the “what you don’t know don’t kill you” attitude towards workers’ misdemeanor; though, as explained by the principle of respondent superior, company management are still lawfully accountable for workers’ misdeeds committed in the capacity of their service even if the management was oblivious of the offenses. A surveillance plan alone is not a cover-up for prejudice or harassment accusations; nonetheless, it forms an important strategy of monitoring workers’ misdeeds. For this reason, it is vital for all concerned employees to be duly informed of the surveillance plan (Yerby, 2013).
Moreover, ECPA restrains the management’s legal responsibility for online communications, applying mainly only sharing of online communication but not storage. Thus, a distinction between online information under transmission and information that has been stored should be made. Failure of surveillance of stored online communication to amount to violation of the ECPA has been established in numerous court proceedings.
The standards outlined by the ECPA are not exhaustive on corporate surveillance; therefore, wider restrictions can be enforced by the individual states. According to the Minnesota, Statute § 626A.02, an individual is allowed to tape online or offline communication provided they are liable to the communication and the tapping is without any illegal objective
Minnesota, Statute § 626A.02 states: It is legal for a person to record a wire, oral or electronic communication if that person is a party to the communication, or if one of the parties (A Practical Guide in 50 States and D.C., 2003). Businesses and workers should be conversant with the implications of the regulations governed by the acts. Breeching of these acts attract a fine not exceeding $20,000 and a five-year jail term or both (A Practical Guide in 50 States and D.C., 2003).
The management has a duty to reasonable care when conducting recruitment. This implies that the management the management is obligated to conduct thorough scrutiny of the employees including their individual traits, employment history, and their verifiable experience. In addition, the employer has the same responsibility in overseeing employees’ conduct at work and curbing employee turnover. These duties may force the management to conduct web search with regards to employees’ personal information in a bid to curtail consequent legal responsibility in case the employee under scrutiny has been accused of malpractices or is unfit for a particular duty (Yerby, 2013).
Web search through social networking site such as LinkedIn and Facebook offers employers better chances of ascertaining employees’ character and skills than the reliance on information provided by the references. However, many human resource specialists and legal counsel have argued that it is improbable that an employer will gain accurate information about employees from the social network and that doing so presents serious risks to the organizations. This is supported by the fact the employers have conventional background verification plans for their recruitment and that web search for applicants’ qualifications should be document and the prospective employee be notified of the search in advance and the reasons for disqualification(Reynolds, 2012).
Employment at Will
The principle of employment-at-will is the basis for most employment rights and regulations. Generally, workers in the US are in employment at will, this implies that they can be dismissed from duty for whichever explanation or no explanation at all. As such, the employer may dismiss a prospective employee based on the information circulated in the online social networking sites or fire an existing employee for misconduct at work.
Nevertheless, the employment at will has three common law exemptions. An example is the public policy exemption which implies that the management should not resort to punitive measures against prospective workers or current workers for incidents that are in contravention to the known public policy. Employees are also exempted from unlawful dismissal based on the requirements agreed to in the implied or explicit contractual work.
Finally, in some states, the management is not allowed to terminate employees based on any act that contravenes the principle of fair-dealing and good faith. In general, the principles of good faith and fair dealing have been applied successfully in situations where the management allowed their workers benefits such personal-leave or sick-leave and dismissed or punished workers during their leave period. Among the aforementioned exception, the infringement of the public policy is the most common scenario where the management resorts to using information published in the net (Reynolds, 2012).
The exception provided by public policy entails a number of situations such as dedication to obedience to the law, upholding of the constitutional rights, executing the constitutional right, and whistle-blowing. This implies, for example, that a worker may be protected from the post he or she makes online about the management’s illicit dealings. As reported by Zehrt (2010), “[almost all of the federal civil rights statutes enacted in the twentieth century contain specific provisions protecting employees from retaliation” (p.152). Examples of regulations that protect workers who inform the public about companies’ unlawful actions from retaliatory move my the employers include Sarbanes-Oxley Act (2002), Employee Retirement Income Security Act (ERISA) (1974), National Labor Relations Act (NLRA) (2006), Family and Medical Leave Act (FMLA) (1993), and Occupational Safety and Health Act (OSHA) (2006).
However, employee freedom of speech in exposing the company’s misdeeds does not entail unlawfully humiliating the employer. As stated in the Restatement (Third) of Agency, employees are expected to be obedient to their employers. As explained by Lee et al. (2009) a worker could violate the duty of trustworthiness to their employer by engaging in “[h]armful speech, insubordination, neglect, disparagement, or disruption of employer-employee relations…,” otherwise disgracing the “name, product, reputation or operation” of the company (411Y12).
Discrimination
According to Decenzo and Robbins (2010), workers and prospective employees are protected from unfair treatment at workplace by several federal antidiscrimination acts such the Americans with Disabilities Act (ADA) (1990), the Age Discrimination in Employment Act (ADEA) (1967), and Title VII of the 1964 civil Rights Act (1964). Monitoring of online communication may reveal information that is not essential in employment and their use to judge employees surmounting to discrimination. This information includes details about employees’ faith, political connection, race, and marital status.
Other Statutes Addressing Corporate Surveillance
Several other regulations are applied in employee monitoring to address the rights of both the employers and the employees. An example is the Stored Communication Act (ScA) (2000) which forbids an individual from unauthorized access to online communication they are not party. A point in case is the Konop (pilot) v. Hawaiian Airlines (2001), in which the Hawaiian Airlines president was found guilty of unlawfully accessing Konop’s website through a shared login details. In this case the employer was originally incapable of obtaining the login information by any means hence colluding with other members to obtain such details was unlawful. Another regulation is the Fair credit Reporting Act (FcRA) (1970) which allows the management to subcontract a third party to verify employees’ credibility on their behalf. This act requires the employer to notify the employee of such surveillance by third party (Riego, Abril, & Levin, 2012).
Recommendations
Employer-employee online and offline communications are influenced by many complex legal concerns. In the face of advances in information technology and the threat to security, reliance on traditional legislations and policies is insufficient in solving dispute that may arise from surveillance. Therefore, to prevent lawsuits, employers should social media policy that fairly addresses organizational communication and provides solution to any foreseeable consequences of employer or employee misconduct (Reynolds, 2012).
Though addressing different objectives, laws and ethics are intimately connected. Corporate adhere to employment laws to enhance public relations and boost productivity. On the other hand, ethics help in addressing challenges facing employer-employee relation or the image of the company where the law is unclear or insufficient. In order to reduce liability exposure, utilitarian approach and Kant’s deontological theory are considered important rational moral theories that maximize the benefits of any action to the majority and emphasize on the right reason for doing so. A combination of these two theories ensures that it is not only what benefits the masses but also what is reasonable in a given circumstance (Yerby, 2013).
Therefore, surveillance is looked at in light of its benefits to the masses (employees) with all reasonable approaches to safeguard the interest of the employer. In terms of legality, National Labor Relations Act (NLRA) (2006) outlines several avenues for solving disputes that may arise between employers and employees in case of surveillance. The management should also be conversant with the Sarbanes-Oxley Act (2002) and Electronic Communications Privacy Act (ECPA) in order to address the challenges of online communications that were not covered by the traditional laws. Finally, in terms of keeping with the right business principle, the employer should explore the employment-at-will principle before resorting to other stringent regulations in addressing employee misconduct (Yerby, 2013).
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