chapter electronic work monitoring law and

Chapter

Electronic Work Monitoring Lawand Policy Considerations

CONTENTS

Page

Part I: Why Is Monitoring an Issue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85Part II: Framing the Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91Manner and Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96Where Is the Future of Monitoring Headed?.. . . . . . . . . . . . . . . . . . . . . . . 97

Part III: An Overview of Applicable Law. . ..........................101The Framework for the Legal Analysis . ...........................101The Concept of Employment at Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101The Legal Status of public v. Private Sector Employees . ............102Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...............102Manner and Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........107Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......................110

Part IV: Concerns Not Addressed by Law . ..........................112Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................113Manner and Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........113Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......................113What Does the Future Hold? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...114

Part V: Policy Options.. . . . . . . . . . . . . . . . . . . . . . . ....................115

TablesTable No. Page

11.12.

13.14.15.16.

Unions With Positions Against Computer-Based Work Monitoring . . . 86Key Issues and Problem Areas in Monitoring Clerical and CustomerService Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87A Framework for Addressing Electronic Work Monitoring . . . . . . . . . . 90Factors Affecting Electronic Monitoring. . . . . . . . . . . . . . . . . . . . . . . . . . 97A Framework for Addressing Electronic Work Monitoring . .........101A Framework for Addressing Electronic Work Monitoring . .........112

Chapter 4

Electronic Work Monitoring Lawand Policy Considerations

With perhaps the exception of marriage, noother institution in society is so pervasive asthe employment relationship. 1 Roughly halfof an adult waking hours are spent at work.Societal attitudes regarding personal dignity,autonomy, and privacy, and the individual’ssense of self are tied to the workplace. Elec-tronic monitoring-the computerized collec-tion, storage, analysis, and reporting of infor-mation about employees’ productive activity2

—may be an increasingly important elementin the relationship between employer and em-ployee, and in the overall context in which workgets done. Decisions about monitoring may af-fect the setting in which citizens work, and maytherefore have a broader social significance.

‘‘ W’(J ha~r(’ lx,(orne a nation of employees . For our gener-at ion, [ }}(I +(] t) ~t o ncr of 1 i f(’ is in another mans hands. ” F. Tan-nenhau m. .,1 l)hilo.soph~” of labor 9 ( 1951 I (as quoted in Hlades,“ f+;mplojn]ent aL Wrdl \s. 1 ndi~iciual Freedom: on Limiting the.lbusi~e I’;xc’rc’iw> of F;mployer Power, ” 67 Columbia Law Re-~tieur 1404 ( 1967’1. Although the employment relationship is freelyentered Into, the ncvd to earn a li~ing, together with limitationsthe indi~idual qu:il}fi(at ions and the ease with which he orsh(, (’an I)(’ sut)stitut ed, often pltice the worker at a disadvan-ta~e in determining Lhe conditions under which he or she shallwork,

“’1’; lectronic work monitoring, ” “electronic monitoring, ” orjust “work monitoring” are Lerrns used interchangeably in thischapter and elsewhere in this report to include computer-basedwork monitoring and telephone service observation. Telephoneser~’ice observation, although not typically computerized, is in-cluded because it is often used in conjunction with electronicwork measurement techniques.

Between 4 and 6 million office workers havetheir work measured by computers, and manymillions more are affected by telephone callaccounting. 3 Proponents of electronic moni-toring, principally the vendors of monitoringequipment and software and some companiesthat have installed monitoring systems, saythat monitoring provides employers with newtools for managing resources, allocating costs,improving productivity, controlling quality,and reducing waste, fraud, and abuse of em-ployer property. At the same time, however,critics of work monitoring, principally somelabor unions and civil liberties organizations,suggest that electronic work monitoring is de-structive to the quality of work life and hasdamaging effects on workers’ privacy, civil lib-erties, sense of dignity, and health.

This chapter is an attempt to provide thepolicy maker with a conceptual framework foraddressing concerns over electronic monitor-ing, now and in the future. It begins by ask-ing why monitoring has become a policy issue,and what is different about electronic moni-toring that causes these concerns. It then ex-amines which of these concerns are currentlyaddressed by existing law and which are not.Finally, it provides the policy maker with arange of options from which to choose.

‘See ch. 2.

PART I: WHY IS MONITORING AN ISSUE?Neither work monitoring, nor the applica-

tion of technology to measure work, is new.As chapter 1 of this report illustrates, thedetailed observation and recording of employeeperformance has been an integral part of Amer-ican industrialization from the mid-1800sonward. During the early 1900s, work moni-toring culminated in Frederick W. Taylor’s

“scientific management. While early workmonitoring techniques were confined to pen-cil and paper tallies of performance, technol-ogies such as the time clock, time stamps, andcyclometers were applied pervasively to themeasurement of work.4

‘E’or a more complete discussion of early forms of work mon-itoring, see ch. 1 of this report.

85

86 ● The Electronic Supervisor: New Technology, New Tensions

Given this long history of work monitoring,two

1.

2.

questions arise:

why is concern about work monitoringamong management, labor, and public in-terest groups only now surfacing? andwhy is the application of electronics to anold-technique unique or different enoughto cause this concern?

Simply put, the questions are “why now?” and‘‘what new?” The first question is addressedpresently, while the second forms the discus-sion in the remainder of this chapter.

Although the question of “why now?” hasno simple answer, it is possible to point to threebroad trends that have contributed to theemergence of monitoring as a policy issue: thecomputerization of office work, the computeri-zation of communications, and the rise of work-ers’ expectations and rights in the workplace.The three types of monitoring considered inthis report—computer-based monitoring, tele-phone call accounting, and telephone serviceobservation—illustrate the way in which thesetrends have propelled work monitoring into thenational policy arena.

The computerization of office work is lessthan 15 years old—less than half of the work-ing lifetime of a white-collar worker.5 Com-puterization has lead to rapid, fundamentalchanges in the quantity, quality, and organiza-tion of office work. As a result, conflicts areemerging between management and labor overhow work will be designed; who will have a sayin that design; and what the expectations ofemployee performance, flexibility, and privacyshould be. The literature on the impact of auto-mation on work is voluminous, and the readerseeking more information is referred to anotherOTA report, Automation of America Offices.6

Computer-based monitoring is one exampleof how the computerization of office work haslead to the recent emergence of work monitor-ing as a salient issue. Since 1982, computer-based monitoring has been the subject of na-

‘5U. S. Congress, Office of Technology Assessment, Automat-ion of America Offices, OTA-CIT-287 (Washington, DC: U.S.Government Printing Office, December 1985), p. 8.

‘Ibid.

Table 11 .—20 Unions With Positions AgainstComputer-Based Work Monitoring

EstimatedUnion membership

Automobile, aerospace, and agriculturalworkers (UAW) . . . . . . . . . . . . . . . . . . . . . . . . .

Communications workers (CWA) . . . . . . . . . . .Electrical workers . . . . . . . . . . . . . . . . . . . . . . . .Electronic, electrical, technical, salaried, and

machine workers (IUE) . . . . . . . . . . . . . . . . . .Federal employees (NFFE) . . . . . . . . . . . . . . . .Government employees (AFGE) . . . . . . . . . . . .Government employees (NAGE). . . . . . . . . . . .Machinists (IAM) . . . . . . . . . . . . . . . . . . . . . . . . .Newspaper guild (TNG) . . . . . . . . . . . . . . . . . . .Office and professional employees (OPEU) . .Postal workers (APWU) . . . . . . . . . . . . . . . . . . .Railway, airlines, and steamship clerks

(BRAC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Service employees (SEIU) . . . . . . . . . . . . . . . . .State, county, and municipal employees

(AFSCME) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Steelworkers (USWA) . . . . . . . . . . . . . . . . . . . . .Teamsters (IBT) . . . . . . . . . . . . . . . . . . . . . . . . . .Telecommunications workers (TIU) . . . . . . . . .Treasury employees (NTEU) . . . . . . . . . . . . . . .Typographers (ITU) . . . . . . . . . . . . . . . . . . . . . . .Utility workers (UWUA) . . . . . . . . . . . . . . . . . . .

1,350,000550,000

1,000,000

160,000150,000265,000300,000940,000

40,000125,000320,000

200,000650,000

1,100,0001,230,0002,000,000

50,000120,00080,00056,000

NOTE” Totals are rounded.

SOURCE WestIn, Pr/vacy and Qua//fy of Worklffe Issues In Employee Mon/for/rrg,contractor report prepared for OTA, May 1986 Bureau of LaborStatlstlcs, 1980, AFL-CIO estimates, supplementary Inqu!nes atindwldual unions, 1984

tional TV news programs, a stream of news-paper and magazine stories, and several recentbooks. Although it has captured media atten-tion, unions were the first principal critics ofcomputer-based monitoring.7 (Unions havingpositions against computer-based monitoringare listed in table 11). While the concerns ofeach union are not necessarily identical in de-tails, a broad consensus seems to be that workspeedups, enforced by close work monitoring,are bad because they create harmful stressamong employees and also compromise the

TDuring the course of this study, OTA Spoke With a V~ietYof union representatives having an interest in work monitor-ing, including the American Federation of Labor & Congressof Industrial Organizations (AFL-CIO), the CommunicationsWorkers of America (CWA), the Service Employees Interna-tional Union (SE IU), Nine to Five: The National Associationof Working Women (9 to 5), American Federation of State,County, and Municipal Employees (AFSCME), the AmericanFederation of Government Employees (AFGE), and the GraphicArtists International Union (GAIU). In addition, 9 to 5 andAFGE were represented on this study’s Advisory Panel. Theseunions, and many others, have taken a public stance againstcomputer-based monitoring.

Ch. 4—Electronic Work Monitoring Law and Policy Considerations ● 8 7

quality of work provided to the public. As anissue of job stress, unions see work monitor-ing-and particularly computer-based monitor-ing—as linked to quality of worklife issues,worker solidarity, job design, and health con-cerns. Worker privacy is also emphasized asa concern of the unions, particularly the rightsof workers to see what records are being col-lected about their work performance.

Unions represent only a fraction of the esti-mated 4 to 6 million monitored employees, butfrom a field study of 110 business, government,and nonprofit organizations conducted forOTA, it is also possible to offer some observa-tions on the attitudes of employees in generalwith respect to computer-based monitoring.The field study revealed that fairness in mon-itoring is a critical factor in clerical and cus-tomer service employee acceptance.8 The em-phasis on fairness highlights the fact that bothprocess and substance are involved in how em-ployees respond to electronic work monitor-ing. In addressing process, employees seek gen-uine involvement in the design, testing,application, and subsequent adjustment of newoffice systems technology. Substantively, theperceived reasonableness of monitoring de-pends on: 1) the fairness of the standards set,2) the fairness of the measurement process em-ployed, and 3) the fairness of the way meas-urements are used in employee evaluation. Abreakdown of these key issues is given in ta-ble 12.

The computerization of communicationsrefers to the fact that the information movingwithin modern communication systems, suchas the telephone, is increasingly transmitted,routed, stored, and processed in digital formby electronic computers. Because of the com-puterization of communications, the use of em-ployers’ telephone systems can be tracked withgreater precision and comprehensiveness thanwas possible previously. Computer softwarein some modern Private Branch Exchanges

SAla we9tin, and The Educational Fund for IndividualRights, Privacy and Quality of Work Life Issues in EmployeeMom”toting, contractor paper prepared for OTA, May 1986; fieldstudy conducted during 1982-84, and updated at all 110 sitesduring 1985-86.

Table 12.—Key Issues and Problem Areas inMonitoring Clerical and Customer Service Workers

Key issues/problem aspects

1. Fairness of work standardsDo standards fairly reflect the average capacities of

the particular work force?Will they create unhealthy stress for many employees?Do they account for recurring system difficulties and

other workplace problems?Do they include quality as well as quantity goals?Do they represent “fair day’s pay for fair day’s work?Do employees share in productivity gains achieved

through new technology?

2. Fairness of measurement processDo employees know and understand how the

measurements are being done?Can measurement system be defeated, impairing

morale of those willing to follow the rules?Do employees receive statistics on performance

directly and in time to manage work rate?Is relationship between quality and quantity

communicated by supervisors when discussingproblems with performance levels?

Do supervisors communicate clearly that they aretaking system/workplace problems into account?

Are group rather than individual rates used when suchan approach is more equitable?

Is there a formal complaint process for contesting theway work data is used?

3. Fairness in applying measurements to evaluationAre there meaningful recognition programs for superior

performance?Is work quantity only one of a well-rounded and

objective set of appraisal criteria?Does employee get to see and participate in

performance appraisal?Is there an appeal process from supervisor’s

performance appraisal?Is there a performance-planning system to identify and

help performance problems?SOURCE: Office of Technology Assessment, 1987

(PBXs), for example, permits station messagedetail recording (SMDR), a form of telephonecall accounting that records from which tele-phone a call was made, what access code wasused, where the call went, and how long itlasted. The call-accounting system can thengenerate detailed, comprehensive reports of allof the telecommunication activities of everyemployee in a firm.9

Telephone call accounting is an example ofhow the computerization of communicationshas placed work monitoring on the public pol-icy agenda. A pilot study of unofficial use of

‘See ch. 3 for a more detailed discussion of telephone cail-accounting systems.


Federal Government long-distance telephoneusage has been completed,10 and the implica-tions of this study for employee privacy causedconcern in both Congress and the press.11 Al-though most of these concerns were over themanner and method by which this study wouldbe carried out (and are therefore addressed be-low), at least some of the concerns are over thepurposes for which it might be used. One con-cern, in particular, is that call accounting mightbe used to discourage whistleblowers, to sti-fle dissent or union activity, or to limit newsmedia access to information.12 Plans are be-ing made to audit Federal employees’ long-dis-tance calls on a regular basis, raising additionalconcerns about the vigilance with which pri-vacy concerns are addressed. The Office ofManagement and Budget (OMB) has issuedproposed guidelines on compliance with thePrivacy Act, in contemplation of a permanantcall-accounting capability in executive agen-cies. 13 In the private sector, where about30,000 call-accounting systems have beensold,14 there are similar concerns over privacyand the potential for misuse. The issues sur-rounding the purposes of call accounting, inboth the public and private sector, are consid-ered in more detail below.

‘The unofficial use of the Federal Telecommunications Sys-tem (FTS) or other government-provided long-distance servicesis illegal. 41 CFR 201-38.007 and 5 CFR 735.205. For a detaileddiscussion of the “Telephone CalI Reduction Initiative, ” con-ducted by the President’s Council on Integrity and Efficiency(PCIE), General Services Administration, and the Office of Man-agement and Budget, see ch. 3.

11 In Mmch of 1985, Rep+ Don Edwards (Chair, Subcommit-tee on Civil and Constitutional Rights) and Patricia Schroeder(Chair, Subcommittee on Service) sent letters questioning OMBDeputy Director, Joseph R. Wright, on the privacy problemsinvolved with the study. The ACLU, The New York Times (“U.S.Phones Raise Issue of Privacy: New Equipment Would Pro-vide Detailed Record of Calls, ” Burnham, Mar. 17, 1985), TheFederal Times (“Planned Phone Audit Brings Blast From Sev-eral Groups, ” Montague, Mar. 25, 1985) and the WashingtonPost (“U.S. Agencies Use High Tech To Curb Workers, ” May9, 1985) and considerable televisions coverage all brought pub-lic attention to the subject.

‘%etter of Rep. Edwards to Joseph Wright, question No. 6.Mr. Wright’s response was that the program would not be look-ing at local calls, and that long-distance calls to news media,congressional offices, public interest groups, etc., would be con-sidered business calls for purposes of the study.

*’Notice by the Office of Management and Budget, 51 Fed-eral Register 18982 (Friday, May 23, 1986).

“See ch. 3.

Finally, heightened public and worker expec-tations regarding privacy, health, and work-life quality help to explain why monitoring hasemerged only recently as a public policy issue.The period from 1965 to 1986 saw the growthof concern over privacy in the public conscious-ness,15 in the courts and legislatures,l6 and inthe scholarly literature.17 The concern overprivacy during the past 20 years largely tracksthe introduction and proliferation of the com-puter as a basic tool for the emerging infor-mation economy. It is no surprise, therefore,that privacy issues have made their way to theoffice environment, where computers have hadtheir most pervasive influence. As we will see,however, the concept of privacy maybe inade-quate to address most of the issues involvedin work monitoring.

At the same time as privacy became an im-portant theme in public policy, there were ris-ing medical, media, and public concerns aboutthe health effects of stress at the office work-place. Studies showed that stress among of-fice workers was a contributing cause of ad-

1%ee e.g., The Dimensions of Privacy: A NationaJ OpinionResearch Survey of Attitudes Toward Privacy, conducted forSentry Insurance by Louis Harris & Associates and Dr. AlanF. Westin, 1979. The survey revealed, among other things, thatstrong majorities of full-time employees believed that it wasno longer proper for employers to ask job applicants about manytopics that had once been traditional to co~lect (e.g., informa-tion on an applicant’s spouse, neighborhood, membership inorganizations, residential status, arrest, and similar matters).A 1983 Survey, also by Harris & Associates, reaffirmed the im-portance of privacy in the public mind.

‘GOver 20 Acts of Congress have been passed since 1970 toaddress problems of individual privacy. See: U.S. Congress, Of-fice of Technology Assessment, Federal Government Informa-tion Technology: Electronic Record Systems and 1noi”vidualPrivacy, OTA-CIT-296 (Washington, DC: U.S. GovernmentPrinting Office, June, 1986), p. 15. Most recent legislative ef-forts to protect privacy include the Counterfeit Access Fraudand Abuse Act of 1985 and the E~ectrom”c Commum”cationsPrivacy Act of 1986. None of these statutes are addressed spe-cifically at employment, however. At the State level, 21 Stateshave passed legislation dealing specifically with the confiden-tiality of employee records, and 34 States have statutes con-cerning the use of the polygraph in employment. Compilationof State and Federal Privacy Laws (1984-85 cd. ) (Washington,DC: Privacy Journal), and January 1986 supp.

ITSee, e.g., Robert Ellis Smith, Workrights, Westin, Com-puters, Personal Admim”stration, and Citizen Rights, U.S. Na-tional Bureau of Standards Special Publication 500-50 (1979),and the report of the U.S. Privacy Protection Study Commis-sion, Personal Privacy in an Information Society (1977). Seealso: OTA, Electronic Record Systems, op. cit.

Ch. 4—Electronic Work Monitoring Law and Policy

verse health impacts, such as heart disease,and that clerical workers—because of their‘‘high demand/low control’ working situations—were among the occupations in office workmost “at risk. “18 Although the studies didnot find harmful stress dependent on computeruse (high levels of stress did show up in high-production, closely monitored clerical workthat was not computer-based), the growingnumber of ‘‘machine paced” and “machinemonitored’ computer-based clerical workersgenerated similar concerns over stress andhealth.

The workplace context in which privacy andhealth concerns fermented was also changing.Women comprise roughly half of the work forcein America today and are especially vulnerableto the impact of microelectronics on the work

“of 1 )() con~rn{~n occupations, the following 12, ranked frommost t[~ It]ast stressful were said to be most stressful:

1, t.iil){)rer i’, \lanager/ administrator2. .Secret:ir} h. M’aitress/waiter3 I n~p({tf~r g, ~lachine operator4 Clinic”~l lab techni~ian 10. Farm owner5, ( ) ffice manager 11, Nliner6. l’oreman 12, I’ainter

(as r{p{)rted in Nleek\, “}!’orker’~ Compensation and Stress,”:\’i’ (’1’(’( ,J. 171, 174-’75 ( 19S4) [based on a 1977 N IOSH study]).See {h. 2 [~f this r~pf~rt, whit’h discusses the N I(JSH study ingreater detail.

Considerations

environment. 19 Accompanying shifts in

● 8 9

thestructure of American industry, from heavyindustry to service and information sectors,was a growing recognition of workers’ legalrights—quite apart from those obtained by col-lective bargaining.20 These new rights are be-ing introduced primarily at the State level, andinclude right-to-know, privacy, safety, and dis-crimination laws. What impact the increasingalarm over drug abuse and subsequent drugtesting will have on this trend toward greaterlegal protection for workers is uncertain.

Of course, understanding the factors thathave made monitoring into a public policy is-sue is of little help in understanding what thespecific issues are, and why electronic moni-toring raises problems that differ from conven-tional forms of work monitoring. Part II ad-dresses these questions.

-—‘%ee: Hartmarm, Kraut, Tiny (eds. ), (’on] purer ~’hips and P:~-

per Clips: Technolog.v and \{ ”omen l;mplfj.~ nlenf [\l’a\hing-ton, DC: National Academ~’ Press, 1986).

~(’See, e.g., “Beyond Unions: A lte~olution in k;nlpl[~~c(Rights is in the Making, ” Business Ilreek, tluly 8, 1985 (c[)~’erstory); and ‘‘The New Industrial Relations, 4‘ Business 11’wIA,May 11, 1981; and more rerentlJ’, U.S. Labor Law and thtI 1’u-.!wre of Labor-Management Cooperation, BI,MR 104 (Jl’ashing-ton, DC: U.S. Department of I.ahor, Rureau of I,al Nlr-11 an age-ment Relations and Cooperati\re Progr,i IIIs, 1 W f; ).

PART II: FRAMING THE DEBATE

As seen in the first section of this chapterand elsewhere in this report, electronic moni-toring raises a variety of distinct concernsranging from worker participation in job de-sign, to worker solidarity, to privacy, to stressand health, to worker dignity, to quality ofworklife, and more. Yet not all of these con-cerns are of the same type; some relate to theway that electronic monitoring is implementedin a given work environment, some to the useof monitoring to drive the worker, some to theuse of information gained in monitoring, andsome to the very fact that monitoring is con-ducted at all. Moreover, these concerns differ,depending on the type of monitoring being dis-cussed; computer-based monitoring raises theissue of stress, while telephone call account-

ing engenders concerns over privacy. Clearly,electronic monitoring is a multifaceted issue,with no simple term of analysis.

Furthermore, upon close scrutiny, objectionsto electronic monitoring resist categorizationin terms of traditional legal and normativeprinciples. As the legal analysis in part III ofthis chapter shows:

●

●

Except when monitoring is used for ille-gal ends, even some of its more onerousforms (e.g., machine pacing) are entirelylegal.The concept of privacy, whether based onlaw or on ethical considerations, seems toonarrow to address many concerns over thetypes of employee monitoring considered

●

The Electronic Supervisor: New Technology, New Tensions

in this report. The performance of tasksat work is, for the most part, an inherentlypublic activity, which is done on behalfof the employer at the place of employ-ment. An employee would likely find it dif-ficult to assert a right of privacy in hisor her performance at tasks such as com-puter claims processing.Although some legal doctrines may be im-plicitly-aimed at-vindicating a person’sclaim to bodily or mental integrity, auton-omy, or dignity, the law recognizes no‘‘right of dignity" or “right of autonomy’as such.21

Not only does monitoring escape the “net”of what is normally considered private infor-mation, its infusion into the workplace seemsso gradual an extension of past practices that,if there is no real basis in doctrines of privacyfor objecting to the proverbial supervisor witha clipboard, there seems to be none to using

ZlCon9ider, for example, the common law torts of:(1) Battery, which is an intentional and unconsented-to con-

tact, and in which “[tJhe element of personal indignity has al-ways been given considerable weight”;

(2) Assault, which stems from an interest in freedom fromapprehension of a harmful or offensive contact (as distinguishedfrom contact). This individual is protected against a purely men-tal disturbance of his personal integrity, Damages are recover-able for mental disturbance (fright, humiliation, etc. ) as wellas any physical illness that flows from it, but an assault mustcreate an apprehension of immediate physical harm; and

(3) Infliction of Mental Distress, an action in which the inflic-tion of mental injury itself became vindictable. It is most oftenfound in cases of intentional, flagrant acts, where “extreme out-rage’ of a defendant’s act allows recovery (“your husband hasbeen in an accident ’’–or situations in which there is repeatedhounding or threatening of the plaintiff). Mental distress mustexist and be severe, and no recovery can be obtained for mereprofanity, obscenity or abuse.

W.L. Prosser, Presser orI Torts, 4th ed. (St. Paul, MN: WestPublishing Co., 1971), pp. 802 et seq.

Some court opinions suggest a close correlation between com-mon law rights of privacy and individual dignity, autonomy,and personal freedom. For example, in Gerety, “RedefiningPrivacy, ” 12 Harvard Civil Rights and Civil Liberties Law Jour-nal 233-296, the author reviews several opinions dealing withthe common law right of privacy, and concludes that:

. . . [n]o fair measure of damages-general or specific-can be ar-rived at until we acknowledge that it was not the unexcused touch-ing or the unwarranted search as such that caused the injury. Whatwas injured, rather, was that peculiar aspect of dignity and free-dom invested in reasonable expectations of privacy.

Id. at 265 (emphasis added). Although it may be the case thatprivacy rights entail interests in dignity and freedom, the con-verse does not necessarily follow: interests in dignity, freedom,and autonomy are not necessarily privacy interests. To vindi-cate interests in dignity and autonomy, in other words, requiresa separate and independent basis in law, such as privacy.

Table 13.—A Framework for Addressing ElectronicWork Monitoring

Concern Criteria

Purpose of monitoring . . . . . . Fairness RelevanceCompletenessTargeting

Manner and method ofmonitoring . . . . . . . . . . . . . . Autonomy Intensiveness

Dignity IntrusivenessPrivacy Visibility

TypeLeakinessPermanence

Effect of monitoring . . . . . . . . Health FrequencyStress Continuousness

RegularityControl

SOURCE: Office of Technology Assessment, 1987

a computer to do much the same thing. Aschapter 1 explained, some form of work moni-toring has always been apart of employment,and the fact that technology introduces newor more efficient ways to monitor work maynot be in itself an obvious incursion on privacy.Some reason must therefore be found whymonitoring work by means of microelectronicsis significantly different from past forms ofmonitoring, and what this difference means interms useful for formulating policy.

To that end, OTA has developed an analyti-cal framework that draws on familiar conceptsand applies them to the new capabilities andcharacteristics of electronic monitoring. Table13 summarizes this framework. In general,most claims about the deleterious effects ofelectronic monitoring can be understood asstatements about its purpose, its manner andmethod of implementation, or its effects. It isthis framework that guides the discussion inthe rest of this chapter. In this part of the chap-ter, the purpose/method/effect breakdown isexamined, in light of the characteristics of mon-itoring technologies, to show why electronicmonitoring may present unique problems forthe relationship between employee and em-ployer. Then, in part III, the variety of legalmechanisms for addressing problems in thepurpose, method, and effect of monitoring areexamined. Finally, the chapter looks at thetypes of claims the law does not address, andexplores the options Congress may wish to pur-sue in light of these unresolved issues.


Purpose

Concerns about the purpose of monitoringrefer to the ends that the employer seeks tofurther through a given monitoring technique.By and large, electonic work monitoring maybe used to measure and document a varietyof employee transactions, for purposes of:

● planning and scheduling personnel andequipment;

• evaluating individual performance andpersonnel decisions (promotion, retrain-ing, discharge, etc.);

• increasing productivity by increasing in-dividual performance (feedback on speed,etc., and work pacing);

• providing security for employer property(including intellectual property) and per-sonnel records;

Ž investigating incidents of misconduct orcrime, or human error; and

• increasing management control, discour-aging union organizing activities, identify-ing dissidents, etc.

Attacks on the purpose of a monitoring sys-tem can be understood as complaints aboutits fairness. While illegal monitoring purposespresent little difficulty for finding the practiceunfair (see part III), its use for currently legalpurposes is more problematic. In general,employees and unions oppose the use of moni-toring for purposes which, while legal, they re-gard as unfair. For example, electronic evalu-ations of employee performance that reflectinadequately or arbitrarily the task the em-ployee is performing, or that place demandson workers’ time and energy that are unrealis-tic or unduly burdensome, are likely to raiseobjections by employees and unions.

Because electronic monitoring represents anunprecedented ability to measure job perform-ance exhaustively and in great detail (see chs.2 and 3), several monitoring system charac-teristics become key items in ensuring fairness;particularly the relevance, completeness, andtargeting of the monitoring.22

ZZTheSe factors are illustrative of the types of concerns raisedbecause of new technologies; they are hardly exhaustive, andthe reader may have his or her own in mind.

Considerations ● 91

Relevance.—A work monitoring techniquethat is relevant is one that measures perform-ance related to the goal that the monitoringseeks to further. Thus, if billing customers ina timely fashion is the goal, a relevant meas-ure would be whether customers were billedon time. A less relevant measure would be thenumber of “fields” in a customer account data-base that are filled in per hour.

Completeness.–A monitoring system is com-plete if it takes into account all, rather thansome, of the performance parameters relevantto a given goal or behavior. If, therefore, a jobentails both talking with as many customersas possible during a given time and handlingcustomer needs in a satisfactory way, a moni-toring system that measures only the numberof customers handled is incomplete.

Targeting.-A monitoring system that gen-erates information on particular individualswithin an organization, rather than the groupor work process of which that individual is apart, is a targeted system. A monitoring sys-tem that reveals only aggregate organizationalperformance is “untargeted” or categorical.

Using these definitions as measures of thefairness of monitoring technologies, one canbegin to understand why new technologyraises issues of fairness of purpose. For exam-ple, in computer-based monitoring, where acomputer is used to tabulate total keystrokesduring a given period of time, the question ofthe relevance and completeness of keystrokemonitoring to the overall task can become apoint of contention. In contrast to nontechno-logical methods of measuring keystrokes, suchas a typing test (where typing speed may berelevant only to qualifying for a job), computer-based keystroke monitoring may make typingspeed an end in itself, without regard to thepurpose for which speed is valued-meetinga deadline as part of an overall project goal,for example. An overreliance on typing speedmight also become an isolated, incompletemeasure of job performance.

In telephone call accounting, issues of com-pleteness and targeting become important toensuring fairness. If, for example, the purposeof the audit is to reveal excessive numbers oflong-distance calls, failure of the call-account-


ing system to also reveal extenuating circum-stances may be deemed unfair. If the call-ac-counting audit targets specific individuals,rather than “cost centers, as abusers of long-distance service, failure to implement specialprocedures for giving notice to that individ-ual, hearing explanations, and allowing chal-lenges may give rise to charges of unfairness.

In service observation monitoring, fairnessmay require providing safeguards to subjec-tive supervisory judgments about the opera-tor’s quality of customer service. In otherwords, if the purpose of the monitoring is toevaluate overall employee performance, it maybe claimed unfair unless a more completemethod of evaluation is used.

Many of the complaints reported to OTAabout electronic monitoring suggested thatmonitoring may itself change what counts asa relevant or complete measure ofjob perform-ance. If, for example, a job previously entailedfinishing a given batch of insurance claims bythe end of a week, a monitoring system thatonly measures the number of claims finishedper hour may change that job by changingwhat counts as a relevant measure of perform-ance, and by foreshortening the time in whicha goal is to be achieved. The means for assess-ing performance may often become an end initself.

Similarly, a monitoring system that is in-complete, or measures only one of several jobparameters, may unintentionally change thenature of the job itself. If, for example, onlyquantity is measured, quality maybe sacrificed,

Manner and Method

Method refers to what information isgathered by monitoring, how it is gathered,and what is done with it once gathered. Assuch, issues about the manner and method ofelectronic monitoring reflect concerns aboutworker autonomy, dignity, and privacy. Careshould be taken in reading these words in atoo narrow or legalistic way—particularly theword privacy. As we shall see, few of the con-cerns electronic monitoring and privacy canbe vindicated in a court of law. Nevertheless,

complaints about a loss of autonomy in jobdecisionmaking, about the indignity of being“watched” by a machine, or the invasive feel-ing of having one’s every move at workrecorded, reflect deeply held societal values.In a work environment, we expect, and indeedhope, that our performance will be evaluatedby our superiors, yet we may balk at thethought that someone will be constantlywatching “over our shoulder. ”

The reason why concerns about autonomy,dignity, and privacy are raised in electronicmonitoring has to do with the fact that com-puters are ever-vigilant; unlike human super-visors, they do not tire of observing and record-ing the minutiae of employee performance. Insome cases, computers are also being used topace workers to speed their work rate.23 Inthe process of using computers as surrogatesfor immediate human supervision, employeesmay complain of “dehumanization” and iso-lation. They may perceive themselves as a com-ponent of a system, rather than as human ac-tors involved in and concerned with a largerenterprise. It is not difficult, under such cir-cumstances, to understand complaints abouta loss of autonomy and dignity:

The electronic monitoring is one of the mostoffensive and pernicious aspects of our jobs.1984 is nowhere more apparent than in theelectronically monitored Equitable office. We“clock in” at 7 a.m. and from then until theend of the day, the VDT is counting everykeystroke. At the end of the day, managershave a computer read-out from which produc-tivity is determined and then averaged withsubjective factors such as attitude to deter-mine our rate of pay. Being watched, counted,and paced by a machine makes it very diffi-cult to take pride in your work.24

It should be emphasized, however, that thepotential for creating an onerous work envi-ronment through electronic work monitoringis not always realized. Indeed, whether com-puter-based work monitoring becomes "offen-

W3ee ch. 2.24FrOm Alm weStin, ~d The Educational Fund for Individ-

ual Rights, Privacy and Qud”ty of Work Life Issues in Em-ployee Mom”toring, contract paper prepared for OTA, May 1986,p. 76; taken from testimony before House Subcommittee (?) 1984.


sive and pernicious depends crucially on themanner and method by which the system isadministered, and what the overall work envi-ronment is like. For example, one of many in-terviews conducted for OTA, by Alan Westin,told of a suburban newspaper’s circulation andclassified ad department that monitored recordsvia visual display terminal (VDT) in a way thatminimized complaints:

The management has a daily job chart thatrecords each operator’s time on and off the ma-chine, errors made, and accounts handled. “Idon’t mind that at all, ” Alice said. “They don’tjudge us on the numbers here; they take intoaccount changes in the business service we aremaking, and the way customers—some ofthem–need more service than others. Its nota Big Brother thing. ” She also noted thatmanagement’s attitude led employees to co-operate informally to take heavy loads off oneanother when the calls piled up at one or twostations. Alice also said that the pay was“OK” by not “great” at this newspaper, butshe liked the job very much because “the ben-efits are excellent, you can take courses atnight and have the company pay for it, andpeople you work with are fun to be with. ”

Several characteristics of electronic monitor-ing systems seem to be key to preservingworker autonomy, dignity, and privacy:

Ž Intrusiveness.— Intrusiveness is concernedwith the degree to which monitoring in-volves probing the individual’s body ormind. A monitoring technique that is in-trusive is one that requires an individualto reveal facts about his or her thoughts,beliefs, or states of mind; to submit sam-ples of body fluids or tissues, or to exposebody parts not ordinarily exposed. A mon-itoring technique is not intrusive if the in-formation collected thereby is obtainedwithout probing into the person’s mindor body. Note that intrusiveness concernshow information is gathered, and not whatthat information is.25 Techniques may be

‘sFor example, pumping the stomach of a person suspectedof ‘‘possessing’ illegal drugs is intrusive. See, e.g., Rochin t’.Cdjfornja, 342 U.S. 165 11952) (The fourth amendment guaran-tees physical security of one’s person against procedures that“shock the conscience.

●

●

●

Considerations ● 9 3

intrusive even if the information they yieldis information ordinarily observable.Intensiveness.– Intensiveness is theamount of detail about a worker’s per-formance that monitoring reveals. An em-ployee log of personal calls made on an em-ployer’s phone reveals only the numberof personal calls. A telephone call-account-ing system reveals much more detail; i.e.,length of call, destination of call, the num-ber called, which phone was used, time ofday, etc.Visibility.-Visibilitv refers to the degreeto which monitoring is apparent to the per-son being monitored. A computer-basedmonitoring system that reports back tothe employee information on the numberof keystrokes entered is more highly visi-ble than one that reports this informationonly to supervisors. In general, the morevisible the monitoring system, the morecontrol the employee has in matching hisor her performance to expectations. Visi-bility is important in part because of itsinfluence on the psychology of power rela-tionships at work. Whereas unaided mon-itoring by a supervisor may require a face-to-face confrontation with the employee—which both informs the employee that heor she is being monitored and ‘humanizes’the monitoring by allowing explanationsand personal interaction—electronic mon-itoring allows the supervisor to removehim or herself from the situation and usethe machine as intermediary, therebyavoiding the human relationships that actas a corrective to overly rigid work envi-ronments.Type.—Type refers to the nature of the in-formation gathered through monitoring.Information can be either substantive ortransactional. Substantive informationconcerns the actual content or meaningof communications or documents. Trans-actional information is information aboutsubstantive information; the number ortype of messages sent, to whom, howoften, in what sequence, etc. Telephoneservice observation is an example of mon-itoring substantive information, since it


●

●

reveals the content of employees’ phoneconversations. Telephone call accounting,by contrast, reveals only transactional in-formation, such as the destination called,length of call, cost of call, etc. The distinc-tion between substantive and transac-tional information can become blurred,especially where computers are used topiece together patterns of transactions,thus allowing inferences regarding thesubstantive content of those transactions.The distinction is important, since bothsocietal expectations and the law gener-ally endow substantive information withgreater importance and protection.Leakiness. -Leakiness refers to the abil-ity of information gathered by monitor-ing for one reason to be used for another.Thus, information gathered through tele-phone call-accounting systems tends to beleaky, because the information gatheredcan be used to track individuals’ extra-work activity, despite the fact that it wascollected for purposes of detecting abuse.Computer-based keystroke monitoring, onthe other hand, tends to be relatively“tight,” since the information gatheredoften has little use outside of the contextof job performance. Like other criteria,leakiness is a factor in determining the le-gality of certain information practices.26

Permanence. —Permanence refers towhether the information gathered by mon-itoring becomes a record, and how longthat record remains in an employee file.Some information obtained by monitor-ing is transient, and never becomes a rec-ord. A computer-based monitoring systemthat determines when the employee hasfinished a certain job and is ready to moveon to the next (i.e., machine pacing) maygenerate no records, and is thus transient.Telephone service observation, on theother hand, may entail writing commentson an evaluation sheet, which then be-comes part of the employee’s permanentrecord.

2%3ee part III of this chapter.

Permanence is important from a privacy stand-point, since privacy law very often regulateswhat may be done with records that are per-manent.27

The way in which these factors interact withelectronic monitoring to give rise to problemsof autonomy, privacy, and dignity can be il-lustrated by a brief consideration of the tech-nologies considered in this report.

Computer-based monitoring may be imple-mented in an intensive and invisible manner.In other words, the computer can be used in-tensively to chart periods of peak performanceat a VDT, time spent away from the terminal,time spent idle, and other minutiae of job per-formance. The monitoring may be of extremelylow visibility-the employee may not knowhow she is doing, but does know that she isbeing “watched.” The knowledge that one’severy move is being watched, without an abil-ity to watch the watcher, can create feelingsthat one’s privacy is being invaded and thatone is an object under close scrutiny. Beingsubject to close scrutiny without an ability toconfront the observer may mean the loss ofa feeling of autonomy. This may have subtleyet profound implications for interpersonalpower relationships at work. In French philos-opher Jean Paul Sartre’s analysis of relation-ships between persons, he observes that:

. . . [w]ith the Other’s look the “situation” es-capes me. To use an everyday expression whichbetter expresses our thought, I am no longermaster of the situation .28

Activities at work that cannot in fact be ob-served, measured, and thus controlled, are bydefault discretionary activities. In the past,the time an employee spent going to the bath-room, talking with his or her spouse, pausingbetween tasks, and so on, were largely discre-tionary. Obtaining detailed information onsuch activities was either impossible, imprac-tical, or not cost-effective. What constituted“acceptable” employee performance was in27* the discussion of “systim of records” under the

Privacy Act in part III.z~smtre, Being ~d Nothinfless, as reprinted in The Phl~os-

ophy of Jean-Pau) Sartm (New York, NY: Vintage Books, 1972),p. 203. Emphasis in original.

Ch. 4—Electronic Work Monitoring Law and Policy Considerations ● 9 5—

part a function of the information a supervi-sor could collect. There was some domain ofbehavior which an employee could call his own,and for which he knew he was unaccountable.

But, because the computer dramatically en-hances the intensiveness of human observa-tion, the employee may feel powerless and ex-posed under the gaze of electronic monitoring.And, since face-to-face exchanges between em-ployee and supervisor often involved negotia-tions and room for human error and “slippage”in the performance of tasks, the employee’srelationship to a supervisor was on more evenfooting. But with systems of evaluation thatare invisible to the employee, the transactionsbetween people that allowed the employee toassert his autonomy may be minimized.

Different sorts of concerns about privacy andautonomy are present in telephone callaccounting. Call accounting raises questionsabout thepemumence and leti”ness of recordsgenerated. The legal implications of these fac-tors are dealt with below, but here we call at-tention to the effect of the existence of recordson employee behavior. If records of all callsare being kept, the employee knows he or shemay be required to justify those that are ‘ques-tionable. ’ Under these circumstances, an em-ployee may be less inclined to make calls thatcannot be easily justified as business calls. Thismay have an impact on “whistleblowers” -those seeking to disclose unethical or illegalcorporate or government activity. Althoughreprisals against the whistleblowing employeemay be forbidden by law or company policy,the knowledge that all of one’s long-distanceor even local calls are being accounted maynevertheless act to “chill” such activities. Evencalls that can be justified as “business” or‘‘official” may be subject to supervisors’ judg-ments regarding propriety or business sense.And, although the employer does have a rightto protect its property by ferreting out non-business calls, the process of identifying thedestination and identity of nonbusiness callsmay compromise an employee’s desire to con-ceal the identity of persons he or she is calling.

In short, automated telephone call account-ing systems, if implemented in a pervasive

fashion throughout government and business,may go “wide of the mark, ” and have inciden-tal impacts on employees’ calling decisions,and perhaps on the employer-employee rela-tionship, which were not anticipated. While inthe past, employers had no choice but to treatemployees as if they were honest,29 the abil-ity to store and process massive amounts ofdata may reverse this de facto presumption.Implicit in the installation of call-accountingsystems is the proposition that at least someemployees cannot be trusted in their use of theemployer’s property. While the propositionmay in fact be correct, the system neverthe-less audits the calling activity of all employ-ees, treating each as a potential abuser of fa-cilities. Moreover, as the ability to detect abuseis refined through technology, the standard ofwhat constitutes an abuse may be lowered—while previous technology capabilities only al-lowed an employer to pay attention to extra-ordinary costs, new telephone call-accountingsystems may allow assessments of calls thatare “unnecessarily long” or “redundant.”

Customer service observation shares manyof the same characteristics with other moni-toring systems. Visibih”ty seems an importantfactor in assessing the manner and method inwhich customer service observation is carriedout. The practice of listening in on employeetelephone conversations with customers is notnew, nor is it the result of recent technologi-cal innovations. It is also not essentially elec-tronz”c monitoring, but instead a variant on hu-man supervision and observation of employees.But, since today’s technology permits a super-visor to listen in on an extension at a remotelocation with no audible “click’ or diminutionin volume, service observation is also a rela-tively low visibility form of monitoring. Thesefactors have lead at least one organization, theNewspaper Guild, to complain that

. . . the [employee’s] inability to tell under thepresent equipment whether or not she is be-ing monitored has inevitably given rise to feel-

‘Whe basic tool for measuring abuse-the monthly telephonebill–was inefficient (requiring a human to scan and “flag” ex-pensive calls) and revealed only flagrant abuses.


ings of concern, nervousness and insecurityand has made the job. . . additionally and un-necessarily burdensome.30

In addition, telephone service differs fromother forms of monitoring in that it reveals asubstantive type of information; i.e., the con-tent of employee conversations. As is discussedin part III of this chapter, privacy concernsare most often present where the type of in-formation being gathered is substantive,rather than transactional. Because of this,courts have held that employers can only lis-ten into business, and not personal, phone calls.Recognizing employers’ needs to monitor thequality of service its representatives offer, nocourt has held service observation to be un-lawful per se.

Effects

Unlike concerns over the purpose, manner,and method of monitoring, concerns over itseffects are more tangible, less value laden, andare directed at the physical and psychologicalwell-being of the employee. Because of this,most parties opposing monitoring have couchedtheir arguments in terms of observable, objec-tive effects on employee health caused by thestress involved in working at a monitored job.As we saw in chapter 2, however, proving thatmonitoring causes stress can be very difficult,and reliable data hard to find.

Electronic monitoring may create new de-mands on employee time, attention, and speedthat give rise to concerns about stress. Amongthe factors that cause these concerns are thefrequency, continuousness, regularity, and con-trol involved in the monitoring. Each of theseis described and discussed below.

• Frequency. — Frequency refers to how oftenthe act of monitoring takes place. A call-accounting audit or computer-based key-stroke monitoring that is conducted once

‘(’From proceedings of an arbitration of a grievance filed bythe Newspaper Guild against the Boston Herald Traveler, Z30s-.ton Herald Traveler Corp., Case No. 1130-0291-68, arb. award,Nov. 12, 1969; as cited in Alan Westin, and The EducationalFund for Individual Rights, Privacy and Quality of Work LifeIssues in Employee Monitoring, contractor paper prepared forOTA, May 1986, p. A-16.

•

●

●

a year is obviously less frequent than onethat is conducted daily or weekly. Fre-quency is an important criterion becausein combination with other criteria, suchas continuousness and regularity, it maymake the difference between monitoringas sporadic “spot checks” for efficiencyand monitoring as a part of the daily jobenvironment.Continuousness.–Continuousness is ameasure of how constant a monitoringtechnique is. It is closely related to fre-quency and regularity, but refers to theduration of and intervals between moni-toring. For example, a computer-basedmonitoring system that records everytransaction, including time spent awayfrom the keyboard, during an 8-hour work-day would be highly continuous. A simi-lar system that recorded only when theemployee logged on and logged off wouldbe relatively noncontinuous.Regularity. —Regularity refers to the pre-dictability of intervals between monitor-ing. Thus, a telephone call-accounting auditconducted every month is highly regular;a random audit is not. Regularity is an im-portant criterion, because it affects suchissues as actual or constructive knowledgeof being monitored, and it may play a fac-tor in chronic stress (if monitoring ishighly irregular, the employee may haveto stay constantly “on guard” to the pos-sibility of monitoring).Control.–Control refers to the ability ofthe employee to set his or her own paceof work, and to use discretion in organiz-ing and executing a task. An employeewho can determine the pace at which dis-crete tasks, such as filling out claim forms,are completed has relatively greater con-trol than one who doesn’t.

Electronic monitoring may involve changesin each of these factors, and may thereforecause greater stress than other forms of ob-serving or measuring employee performance.In computer-based monitoring, for example,an employee’s control over the pace of workmay be given over to the machine; when oneclaim form is filled out, another pops up on the

Ch 4—Electronic Work Monitoring Law and Policy Considerations ● 9 7

screen, and delays in processing the second arebeing recorded. The machine sets the pace. Thismay conceivably cause stress. On the otherhand, in customer service observation, continu-ousness and regularity may be the factors caus-ing stress. Whether these, or any other, char-acteristics of electronic monitoring factors doin fact cause stress is the subject of some de-bate, as will be discussed in part III.

Where Is the Future of Monitoring

H e a d e d ?

The full extent of electronic monitoring tech-niques may have yet to be realized, and wemight see monitoring expand into more anddifferent jobs. The only limit, in principle, isthe technology itself. Advances in technologymay allow a greater range of less routinizedtasks to be monitored. Sophisticated softwaredesign, called expert systems, in combinationwith the computerization of most office activ-ity, may enable tracking the complex trans-actions of bank loan officers, sales and man-agement personnel, and stock brokers. Profitcenter accounting software, for example, cankeep accurate and timely information on suchitems as expense account and investment ac-tivity, interdepartmental funds transfer, andbusiness expense structure and account turn-over. Since many expert systems are appliedto assist physicians in diagnosing disease, itis conceivable that such systems could also beused to monitor diagnosis and method of treat-ment decisions. Depending on the reliabilityrecord of these expert systems, and their ac-ceptance in the medical community, compli-ance with expert systems’ “decisions” may be-come prima facie evidence of a standard of duecare for purposes of determining liability fornegligence.

Advances in technology could change mon-itoring in the following ways:

More types of information, including in-formation about employees’ behavior out ofwork, may become increasingly available.A greater amount of information aboutemployee performance is now availablethrough the use of technology. Sophisti-

Table 14.—Factors Affecting Electronic Monitoring-.—— .——— ——.Factors favoring increased monitoring:● Economics and increasing sophistication of the technology• Labor market trendsŽ Macroeconomic trends● Employer Iiability● Vendor bandwagons● Technological imperatives

Factors limiting increased monitoring:● Employee backlash, morale, & t u mover● Diminishing returns● Job deskilling or upgrading• Information overload● Management prioritiesSOURCE Off Ice of Technology Assessment 1987

cated use of the computer to edit and di-gest this information allows it to be putto practical use.In general, the means for obtaining infor-mation about the individual are less phys-ically intrusive than would be possiblewithout technological methods.The storage capacities of modern informa-tion systems permits more informationabout employees to be retained as records.The growing use of computer networksalso permits employee records to be dis-tributed and shared more easily than pa-per folders.

Technology is not, as a practical matter, theonly limit on electronic monitoring. A varietyof factors, aside from legislation, may influ-ence the way in which monitoring technologyis eventually used. The factors can be groupedinto those that tend to favor an increasingamount of monitoring, and those that tend tolimit monitoring. They are discussed below andsummarized in table 14.

Factors Favoring Increased Monitoring

Because purchasing, maintaining, and usingan electronic work monitoring system often in-volves considerable expense, monitoring is un-likely to be done gratuitously. Beyond achiev-ing the stated goals of enhancing productivityor quality, or detecting and combating waste,fraud, and abuse, several factors in combina-tion suggest that work monitorin g may in-crease, both in terms of the sheer volume ofbusinesses that monitor and the variety ofmonitoring techniques and work environments.Some of these factors include:

98 . The Electronic Supervisor: New Technology, New Tensions

●

●

The economics and increasing sophistica-tion of the technology.—In the past, theeconomics of monitoring tended to workagainst intensive mass surveillance; paidemployees were required to observe otheremployees. Modern monitoring techniquesalleviate this fixed cost, labor-intensive ap-proach, and substitute an approach witha near-zero marginal cost, which is capital-intensive. Monitoring systems may be-come cheaper to maintain than the costof abuse or inefficiency in the labor force.And, although it is easy to overstate theimportance of new technologies,31 thepermeation of microelectronics into mostoffice technology means that monitoringcan be fully integrated into work processeswithout the need for elaborate and costlyindependent measurement devices. Com-puter terminals and PBXs, for example,can be monitored through relatively simpleand inexpensive changes in software.32

Labor Market Trends.—Organized labor’sshare of the work force is currently be-tween 18 and 19 percent of the nonagricul-tural labor force in America (down froma high of 35.5 percent in 1945), and it isexpected to decline further over the next15 years.33 There is a concomitant shiftin jobs from the manufacturing to serv-ice sector; precisely the sector in whichmonitoring is highest and unionizationweakest. It does not necessarily followfrom this that employee rights are being

31FOr ~xmp]e, key5trOke counters, called “cYclOmeters,”were available for typewriters in 1913, and Taylorism devel-oped a variety of sophisticated techniques for measuring out-put, sampling piecework, and counting units of production, See,e.g., Lee Galloway, Offi”ce Management: Its Prina”ples and Prac-tice (New York, NY: Ronald Press, 1919); and William Schulze,The American Offi”ce: Its Organization, Management, andRecords (London: Key Publishing, 1913).

32The In@=a~ ~wices I)igi@ Network (ISDN) maY domuch to accelerate this trend toward integration, since all trans-actional information can be reduced to commensurate, digitalform. The first critical steps toward ISDN have already beentaken, and will give users access to a broad range of communi-cations and data processing services. See: Robert Rosenberg,“The Digital Phone Net Finally Starts Taking Off, ” Electronics,Aug. 21, 1986, pp. 57-61,

33’’ Beyond Unions, “ Business Week, July 8, 1985, pp. 72-77.

●

●

●

diluted, 34 but it may divert the source ofemployee rights from the provisions oflabor-management contracts to statutoryor common law; areas which, as we haveseen, provide a paucity of protectionagainst monitoring.Macroeconomic Trends.— Increasinglycompetitive international markets in theprivate sector, and decreasing agencybudgets in the public sector, force em-ployers to trim expenses, including thoseassociated with labor. Monitoring is oneway of accomplishing this.35 At the sametime economic insecurity within the labormarket over finding and keeping a jobtend to blunt the incentive of employeesto “rock the boat, ” particularly if it wouldentail lawsuits against employers.Employer Liability. —For a variety of rea-sons, it is the employer that generallysuffers economic losses from the wrong-doings of its employees. Product liability,negligence, trade secret, and even crimi-nal laws often ensure this result. Further-more, plaintiffs in civil suits often look tothe employer’s “deep pocket, ” rather thanto just the employee, for redress. Juryawards may be very high. Under these cir-cumstances, it is not merely prudent, butin fact mandatory, that the employer ex-ercise a degree of oversight and controlover its employees. Electronic monitoringmay often be the least expensive and mostthorough way of facilitating this.36

Vendor Bandwagons.—Vendors of com-puter-based monitoring and telephonecall-accounting software have an obviousinterest in promoting their products. Whilesome vendors are sensitive to privacy and

34Some think that the case is just the contrary: “Some busi-ness leaders think they will get a union-free environment, butwhat they may get is a legalized environment, according toHarvard labor law specialist, Paul Weiler, as quoted in Busi-ness Week, July 8, 1985, p. 73.

SSA press release by OMB in support of its Telephone C~lReduction Initiative said, for example, that “the PCIE andGSA/OMB initiatives will address the reduction of the Gov-ernment’s long distance phone costs. ”

%For exmple, by us~g a computer to track the accuracY ofrecords maintained by employees to avoid liability for warrantyor negligence in providing information; by sampling the com-munications and memos that go out of the office; or by usingcameras to observe employee conduct.

Ch. 4—Electronic Work Monitoring Law and Policy Considerations ● 9 9

●

other concerns, some tend to “puff” thesavings that their systems offer.Technological Imperatives.—Monitoringmeasures many things that employershave always wanted to know. In addition,a manager is concerned with doing all thathe or she canto increase efficiency and cutwaste. Nor should one rule out an irra-tional, but common response to new tech-nology: “if it can be done, it should bedone. ” Because of this, the use of moni-toring technologies may become an im-perative or an accepted way of doingbusiness.

Factors Limiting Increased Monitoring

Not all factors indicate a headlong drifttoward more widespread and intensive moni-toring. Indeed, many factors seem to suggestthat monitoring, if taken to extremes, may ac-tually impede some of the goals that it seeksto further (e.g., productivity). Such factors mayinclude:

Employee Backlash, Morale, and Turn-over.–Past attempts to drive employeesto ever-higher levels of production throughclose supervision, surveillance, abuse, andthreats of discharge have met with greatresistance among workers.37 Employeesabotage and informal collusive “slow-downs, ” which tended to reduce produc-tion below the average, were often the re-sult, even in nonunionized industries.During times of economic expansion, jobturnover also increased. To the degree thatautomation is contributing to job upgrad-ing (see below), turnover may become anincreasingly expensive proposition, be-cause of the time and money involved intraining new employees.Diminishing Returns.-A monitoring sys-tem that emphasizes speed or volume, asmany computer-based monitoring sys-tems do, may often do so at the price ofquality or accuracy. A computer-basedmonitoring system that counts keystrokes,

‘7See: A. Gouldner, Patterns of lmiustrial Bureaucracy

for example, may engender a greater num-ber of unintentional or intentional errors(e.g., holding one key to increase totalnumber). According to a recent work onthe subject, greater gains in productivityare often the result of a reorganized work-flow and the integration of previouslyfragmented tasks.38

Job Deskilling or Upgrading. -It is unclearwhether office automation is strippingrelatively skilled jobs of their discretion-ary and autonomous content (deskilling),or whether it in fact is taking the drudg-ery out of work, leaving the employee witha greater latitude for individual creativity(upgrading). Some studies have suggestedthat both deskilling and upgrading areoccurring, sometimes within the same oc-cupation.39 To the degree that jobs arebeing upgraded by automation, work mon-itoring systems that require jobs to be rou-tinized, and reducible to standardizedunits of production, may become less andless apropos of highly complex, nonstan-dardized work environments.40

Information Overload.–Although elec-tronic monitoring offers gains in efficiencyover human observation, it very often re-quires that a human digest the informa-tion generated by the system and makemanagerial decisions based on that infor-mation. This in itself may require consid-erable investments of time and wages. Therecords generated by telephone call ac-counting systems, for example, can bequite voluminous, and often require acadre of auditors to verify and interpretthe results.41

MIpad Strauggmm, Information payoff (New York Ny: FrwPress, 1985).

39P Af-tewe~ ~d J. Rule, “COmPUting and @g~katiOnS:What We Know and What We Don ‘t Know, Communicationsof the ACM, December 1984, vol. 27, No. 12, pp. 1184-1192;R. Kling and W. Sacchi, “Computing as Social Action: The So-cial Dynamics of Computing in Complex Organizations, Ad-vances in Computers, vol. 19, 1980.

‘Paul Straussman, Information Payoff (New York, NY: FreePress, 1985).

“See ch. 3 for an example of an expense report generated bytelephone call accounting.

4ZR. Edwards, “Individual Traits and Organizational Incen-tives: What Makes a ‘Good’ Worker, ” Journal of Human Re-

(Glencoe, IL: Free Press, 1954). sources, winter 1976.

100 ● The Electronic Supervisor.’ New Technology, New Tensions

● Management Priorities.—The kinds of in-formation provided by electronic monitor-ing may not assist management in ad-dressing the workplace inefficiencies thatit perceives as most troublesome, andmonitoring may frustrate the human re-lations goals that many firms see as a keyto productivity. Among management’smore pressing concerns are employeefraud and chronic absenteeism and tardi-ness;42 conduct that requires no elec-tronic monitoring to detector deter. More-over, management may have no interestin monitoring systems that degradeworker responsibility and morale, sincecommitment to the job is perceived as avital element of employee productivity .43

Wild Cards: Automation andArtificial Intelligence

It is possible that present concerns overworkmonitoring may be rendered obsolete by ma-chines whose functions are to substitute forprecisely the type of job that is today the fo-cus of monitoring. As mentioned in chapter2, electronic monitoring is most often used injobs that require relatively few skills, that arehighly routinized, and that have more or lessuniform patterns of input and output. Thistype of labor is gradually being substitutedby automation. Data-entry work (whether nu-meric or textual in nature), for example, canbe eliminated by:

• interorganizational transfer of data,directly from computer to computer;

4~R. Walton, “From Control to Commitment in the Work-place, ” Harvard Business Review, vol. 35, No. 2, 1985, pp. 76-84; and “The New Industrial Relations, ” Business Week, May11, 1981. See also: Business Week, “The Hollow Corporation”special issue, Mar. 3, 1986; Business Week, “High Tech to theRescue, ” June 16, 1986; National Academy of Science, Towardsa A/ew Era in the U.S. Manufacturing (Washington, DC: 1986);and Human Resources Practices for Implementing AdvancedManufacturing Technology (Washington, DC: 1986).

direct input of data by optical scanningtechnologies, and possibly by speech rec-ognition technology; andcapture of data at the point of origin, ina variety of ways ranging from bar codereaders to consumer use of terminals, e.g.,bank automated teller machines (ATMs).44

In conjunction with progress in natural lan-guage processing and pattern recognition sys-tems, 45 this trend toward automation ofhighly routine jobs may end up eliminatingnarrow, low-skill clerical positions altogether,replacing them with multi-activity skilled po-sitions.” Highly complex jobs, requiring mul-tifaceted decisionmaking, interpersonal skills,and “common sense” judgment, are unlikelyto be as susceptible to electronic monitoring,since these jobs are not amenable to merelyquant i ta t ive measures o f per formance.4 7

Thus, it is possible that the issue of electronicwork monitoring is merely a transient phasein the automation of office work. There aresome indications, however, that data entry re-quirements are accelerating faster than theability to automate them. So it may be quitesome time before monitored jobs are auto-mated out of existence.

44From U.S. Congress, Office of Technology Assessment,Automation of America Offices, OTA-C IT-287 (Washington,DC: U.S. Government Printing Office, December 1985), p. 47.

45U.S. Congress, Office of Technology Assessment, informa-tion Technology R&D: Critical Trends and Issues, OTA-CIT-268 (Washington, DC: U.S. Government Printing Office, Feb-ruary 1985), see especially ch. 3, “Selected Case Studies (Artifi-cial Intelligence).

4%J.S. Congress, Office of Technology Assessment, Automa-tion of America Offi”ces, OTA-CIT-287, p. 51. Of course, thelow-skilled employee may be eliminated entirely. The conse-quences of automation for the job market are highly controver-sial, but it is unimportant for present purposes to enter thedebate.

iTThis sta~ment should be qualified by two caveats: anY jobperformance can in theory be subjected to quantifiable, elec-tronically monitorable criteria; and electronic monitoring of thefuture may be able to build in some sort of assessment of thequalitative features of job performance.

Ch. 4—Electronic Work Monitoring Law and Policy Considerations

PART 111: AN OVERVIEW

The Framework for the Legal Analysis

Part II suggested that concerns over the pur-pose of monitoring can be understood as ob-jections based on notions of fairness; that themanner and method in which monitoring is im-plemented may involve issues of dignity, au-tonomy, and privacy; and that issues involv-ing the effects of monitoring can be largelyunderstood as concerns over health and stress.The following legal analysis uses this frame-work by applying more specific legal conceptsto the purpose/manner and method/effect frame-work, Table 15 shows the relationship of thisframework to applicable law.

Each of the major types of monitoring con-sidered in this report—computer-based moni-toring, telephone service observation, and tele-phone call accounting–will, to the extent thatthey raise unique legal issues, be discussedseparately. Otherwise, the analysis that fol-lows is cumulative; what is said of computer-based monitoring, for example, applies equallyto telephone customer service observation andtelephone call accounting, unless specificallymentioned in the text.

Before proceeding with the analysis, it is nec-essary to discuss two issues common to allthree types of work monitoring: the concept

OF APPLICABLE LAW

• 101

of employment-at-will and the differing legalstatus of private and public sector employees.

The Concept of Employment-at-will

Under the common law tradition in theUnited States, the relationship between em-ployer and employee has been one of “employ-merit-at-will. ” Employment-at-will simply meansthat, in the absence of a specific agreement tothe contrary, an employer has an absolute rightto discharge an employee for any reason, andthe employee has a correlative right to resignfor any reason.’” Although subject to consid-erable erosion through a variety of judicial andstatutory exceptions and qualifications (dis-cussed below where relevant), q{’ the employ-ment-at-will doctrine is still law in all 50 States.

—%. Williston, Contracts j 1017 ( 1967): see e.g., Pearson T’.

Youngstown Sheet & Tube Co., 332 F.2d 439 (7th Cir. ), cert de-nied, 379 U.S. 914 (1964). The terminability y at will doctrine canbe modified by a contractual agreement to retain the employeefor a specified period of time require that the discharge of anemployeee be based on a breach of that employee’s obligationsunder the terms of his or her contract of employment.

4gThe claim of wrongful discharge, for example. has been ac-cepted in a majority of States. ‘ ‘To date, the common law ofthreefifths of the states has recognized, albeit to markedly vary-ing extents, a cause of action for wrongful discharge in one formor another. ” Kenneth T. I.opatkay, “The Emerging I.aw ofWrong Discharge-A Quadrennial Assessment of the I,abor I.awIssue of the 80’s, ” 40 Business Law 445 (1984), and see: Jl’il-liam L. Mauk, “Wrongful Discharge: The llrosion of 100 Yearsof Employer Privilege, ” 21 Idaho Z,aw lle~’if~u’ 201 ( 1985).

Table 15.—A Framework for Addressing Electronic Work Monitoring

Concern Criteria Example of applicable law

Purpose of monitoring . ., ... . . . . . . . . Fairness Relevance National Labor Relations Act: Civil Rights ‘-

Completeness Act; Merit System Principles (as admin-Targeting istered in EEO, OS HA, ERISA, EPA, etc. a);

State Law on Privacy; Constitutional Lawa

Manner and method of monitoring . . .Autonomy Intensiveness State Law on Wrongful Discharge: State LawDignity Intrusiveness on Privacy; PCIE Guidelines; Title Ill of Om-Privacy Visibility nibus Crime Control and Safe Streets Act;

Type Electronic Communications Privacy Act; Na-Leakiness tional Labor Relations Act, Privacy Act ofPermanence 1 974a

Effect of monitoring . . . . . . . . . . . . Health Frequency Worker’s Compensation Statutes on Stress-Stress Continuousness Causing Labor

RegularityControl

aAppl IeS only 10 Federal employees

SOURCE Of ftce of Technology Assessment, 1987


The significance of the doctrine of employ-ment-at-will for electronic work monitoring liesin its practical effect on the legal or economicpressure that an individual employee can bringto bear against the employer. Unless the con-tract of employment includes either substan-tive prohibitions, such as work environmentclauses that can be construed to extend to workmonitoring, or procedural requirements, suchas binding arbitration agreements, an em-ployee who objects to being monitored has theoptions of accepting the practice, protestingthe practice to the employer and facing possi-ble dismissal, or leaving the job voluntarily.This is particularly true of Federal employees,who, though they are represented by the Amer-ican Federation of Government Employees(AFGE), are forbidden by law to negotiate per-formance standards which are at the heart ofmany disputes over electronic monitoring.50

The Legal Status of Public v. PrivateSector Employees

The legal rights of an employee with respectto electronic monitoring depend critically onwhether the employer is a privately owned andoperated firm or an agency or subdivision ofthe local, State, or Federal Government. Asa general rule, an employee has no constitu-tional rights against private individuals, in-cluding private employers.51 Therefore, evenif some forms of monitoring can be said to in-

505 U.S.C. $43, The Federal Labor Relations Statute.51Thi~ ~OnCept is knom ag “state action. ” It k a bask Prin-

ciple of constitutional law, and provides that the rights securedto individuals by the 14th Amendment to the Constitution pro-scribe ordy certain actions by the stab, state agencies or subdi-visions, or individuals acting under color of State law, and donot limit actions between private individuals or private enti-ties. See e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).There are certain narrow exceptions to this rule, as where a com-pany assumes all the functions of a municipality, Marsh v. Ala-bama, 326 U.S. 501 (1946), or where there is substantial Stateinvolvement with a privak entity, e.g., Burton v. Wihm”ngtonParking Authority, 365 U.S. 715 (1961). Some have argued thatthe actions of large private organizations that wield great eco-nomic power over individuals should be considered State ac-tion. See, e.g., Berle, “Constitutional Limitations on CorporateActivity-Protection of Personal Rights Invasion Through Ecenomic Power, ” 100 Um”versity of Pennsykuu”a Law Rew”ew 933(1952).

fringe a constitutionally protected interest,that interest can only be vindicated if the em-ployer is a local, State, or Federal Government,or if the employer is acting pursuant to or un-der authority of a statute or ordinance.52 Fur-thermore, the Privacy Act of 1974, which maybe relevant insofar as electronic monitoringoften generates a system of records, appliesonly to records kept by the Federal Govern-ment. It is therefore significant primarily toFederal Government employees.53

Notwithstanding this crucial distinction be-tween private and public sector employers,there are a number of State and Federal stat-utes that may be relevant to considerationsof the purpose, the manner and method, andthe effect of monitoring by both private andpublic sector employers. The public/private dis-tinction is therefore considered below onlywhere relevant.

Purpose

Computer-Based Monitoring

Computer-based monitoring is the computer-ized collection, storage, analysis, and report-ing of information about certain employeework activities. Within this broad definition,the chapter focuses on the use of computer-based monitoring to obtain data about employ-ees directly through their productive use ofcomputer and telecommunications equipment.In all cases documented by OTA, computer-based monitoring is used by both public andprivate sector employers for entirely legal pur-poses. As a rule, an employer is not liable forendeavoring to further its legitimate businessinterests, such as enhancing productivity and

bzEven in the latter case, the breadth of State action maY ‘n

fact be very narrow. See, e.g., Moose Lodge v. Irvis, 407 U.S.163 (1972) (State liquor license for segregated dining room wasinsufficient State involvement).

53A pro~sion that would have made the privacy Act! 2

U.S.C. $552a (1976), applicable h the private sector was presentin the original Senate version of the Act, S 3418, 93d Cong.,2d sess. $201(a), but was not adopted. The Privacy Act is, how-ever, applicable to government contractors. 5 U.S.C. $552a(m).

Ch. 4—Electronic Work Monitoring Law and Policy Considerations ● 103

quality. Nor is an employer liable for protect-ing its property, or for investigating miscon-duct or crime.54

Computer-based monitoring for purposes ofadvancing or protecting commercial interestsand overseeing actions of employees is notmerely prudent business practice—it may bea positive legal requirement.55 In many in-stances, an employer is held vicariously liablefor the torts or crimes of its employees, basedin part on the theory that it is in control ofand responsible for many of the actions of itsemployees while in the scope of their employ-ment.56 Furthermore, an employer, as a selleror even gratuitous supplier, may be liable forthe quality of the goods, services, and perhapseven the information produced by its employ-ees.57 And, monitoring the flow of tradesecret information out of a business concernmay be necessary if an employer is to preserveits rights under trade secrets law.58

54 Ba~ed on one survey of the top three reasons for auditing

the use of intelligent desktop terminals were:c To prevent abuse of company PC resources for personal

purposes.. To prevent confidentiality/security breaches.s To prevent violation of legal/regulatory duties in the use

of client or employee data.From Alan Westin, and The Educational Fund for IndividualRights, Privacy and Quti”ty of Work Life Issues in EmployeeMonitoring, contractor paper prepared for OTA, May 1986.

55 For exmp]e, a representative of American EXweSS COW.!Inc., informed OTA that American Express is required by theFair Credit Reporting Act to stop dunning a card member whowrites in to say that he or she is having a dispute with a serviceestablishment. Because the letters are computer generated, theonly way that American Express can know it & in complianceis through its monitoring system, which aggregates all suchtransactions and reports on when they are made.

sG~, e.g., PrOSSer on TOrtS, $69 (1971)”

‘7 The Uniform Commercial Code, adopted in 49 States, im-poses on the seller of goods three different kinds of warranties.U.C.C. 2-313-315 Providers of services, such as insurers, maybe liable for breach of either express or implied conditions ofthe contract. Information providers, such as database compa-nies and weather forecasters, may be liable on several theories,such as strict liability, negligence, warranty, or defamation. See:e.g., Aetna Casualty & Surety Co. v. Jeppesen & Co., 767 F.2d1288 (9the Cir. 1985); and Dunn & Bradstrect v. GreenmossBuilders, Inc., 105 S. Ct. 2939 (1985).

58A tra& gecret ig a form of intellectual prOper@ that coV-ers any confidential formula, pattern, device, or compilation ofinformation used in a business, which gives that business anopportunity to obtain an advantage over competitors who donot know or use the secret. One of the factors for determiningwhether a business’ secret is a trade secret is “the extent ofmeasures taken by (it) to guard the secrecy of the information. ”Restatement of Torts, ~757, comment B.

When used for certain purposes, however,computer-based monitoring may become theinstrument of illegal ends. It is conceivable,for instance, that monitoring could be used tofrustrate the rights of employees to organize,by being used as “punishment” for individualsseeking to organize.59 OTA found no evidencethat monitoring is actually being used in thisway.60

It is also conceivable that monitoring mightbe used to discriminate against a class of em-ployees, by placing stricter scrutiny and stand-ards of job performance on certain groups. Asmentioned in chapter 2, the highly specific in-formation that monitoring generates often re-quires a considerable amount of interpretation,leaving great leeway for (intentional or unin-tentional) misinterpretation in the guise of “ob-jective, ” quantitative evidence. OTA found nocase where monitoring was intentionally usedfor this purpose, but that does not precludesuch a possibility.61 It is important to pointout, however, that the vast majority of employ-ees whose work is monitored by computer are

wsuch tights me pro~c~d, for example, by the Nation~ ‘a”bor Relations Act, 29 U.S.C. $151 et seq., which secures to em-ployees “the right to self-organization, to form, join, or assistlabor organizations . . .“ Id., at $157. The use of monitoring toimpose changes in working conditions-e. g., by accelerating ma-chine pacing—may be illegal if done for the purpose of reprisalagainst employee organizational activity. 29 U.S.C. $158 (a) (3);See, e.g., N. L.R.B. v. Sm”tary Bag and Burlap Co., 406 F.2d750 (3rd Cir. 1969) It is also possible that PC use could be moni-tored to detect union communications by searching or auditingPC-user disks or files, although there is no indication that thisactivity is widespread today. Monitoring for this purpose, how-ever, would probably not violate labor laws, since employersmay observe the activities of employees on its property duringworking time. Stone & Webster Engineering Corp. v. N. L. R. B,,536 F.2d 461 (lst Cir. 1976); N. L.R.B. v. R.C. Mahon Co., 269F.2d 44 (6the Cir. 1959).

600ne source told OTA that one practice in monitoring com-

puter files is to check for human error. Under this circumstance,some privacy questions may raised, despite the legitimate pur-poses of the monitoring.

GIFor exmple, the veracity of computer monitoring recordswas the subject of an arbitration dispute between The Stateof Oregon Employment Division and the Oregon State PublicEmployees Union (affiliated with the SEIU), on behalf of oneof its members. The employee was fired from her job as wordprocessing specialist for allegedly tampering with her and others’production statistics generated by a Wang “Machine Statis-tics System. ” The arbitrator found the statistics generated bythe computer system reliable, albeit circumstantial, evidencethat the employee had tampered with the system, and let theState’s decision to terminate the employee stand. The union

(footnote continued on next page)

104 . The Electronic Supervisor: New Technology, New Tensions— — — —

female, raising questions about the existenceof de facto discrimination in working con-ditions. 62

Finally, monitoring could be used as amethod of detecting, preventing or retaliatingagainst whistleblowers. This might be accom-plished by restricting access to certain com-puter files for the purpose of preventingdamaging information from being revealed, bytracking the types of files accessed by certainemployees in order to ascertain the source of“leaks,” or by imposing more onerous demandson certain employees for revealing evidence ofwaste, fraud, or abuse.63 OTA again found noevidence that monitoring is being used for suchpurposes.

(footnote continued from previous page)

disputes the arbitrator’s findings, and suggests that the em-ployee’s “work station was frequently used by other employ-ees, particularly her supervisor with whom she had a bad work-ing relationship. From a “case study” submitted to OTA bythe Service Employees International Union, and Westin,“Privacy and Quality-of-Worklife Issues in Employee Monitor-ing, ” OTA Contract Report, December 1986. See also, The WallStreet Journal, June 6, 1985. The union thus suggests the pos-sibility that the employee could have been ‘‘framed. Regard-less of whether the employee in this case was in fact culpablefor the alleged tampering, it is clear that monitoring systemsare capable of being used for discriminatory or retaliatory rea-sons: the objective, mechanically produced measurements ofproductivity can be “rigged,” and undue trust can be placedin machine printouts.

‘Wee Title VII, Civil Rights Act of 1964, 42 U.S.C. 2000c(a)(l). The de facto feminization of monitoring may give rise tosuits under the Civil Rights Act, since intent to discriminateis not a prerequisite to an action under Title VII.

‘;{Federal employees ha~’e been protected by statute againstreprisal for disclosing waste, fraud, or abuse in the Federal Gov-ernment since 1979. As part of “merit system principles, ” allemployees of the executive branch of government, the Admin-istrative Office of the U.S. Courts, and the Government Print-ing Office:

. . . should be protected against reprisal for the lawful disclosureof information which the employees reasonably believe evidences—

(A) a violation of any law, rule, or regulation, or(B I mismanagement, a gross waste of funds, an abuse of author-

ity, or a substantial and specific danger to public health or safety5 U.S.C. $2301(b)(9)

Additional protection may be available under anti-reprisalclauses of various substantive employee protection or publicprotection laws, such as EEO, OSHA, ERISA, EPA, and so on.Other public employees are protected under First Amendmentprinciples, as articulated in Pickering v. Board of Education,391 U.S. 563 (1968) (“the interests of the [employee], as a citi-zen, in commenting upon matters of public concern [are to beweighed against] the interest of the State, as an employer, inpromoting the efficiency of the public services it performsthrough its employees. ” Id. at 568. See also: Mt. Healthy CitySchool District Board of Education v. Doyle, 429 U.S. 274 (1977)(protected whistleblowing must be ‘a matter of public concern”

The number of illicit purposes to which mon-itoring can be put is limited only by the imagi-nation, yet monitoring seems no more or lesslikely to lend itself to illegal retaliation thanany other form of office technology (the papercopier or punch clock, for instance). However,the employee may often know that his or hercomputer files or phone calls are being “ob-served” by the monitoring system, and thisknowledge may in itself act as a “chilling” de-vice to would-be whistleblowers or union or-ganizers. In a case example submitted to OTAby the AFL-CIO, the chilling effect of videoobservation was noted:

. . . employer installed and focused TV moni-toring equipment inside the plant on everywork station and worker after organizing ef-fort began. Monitors were not available for allto see, but viewed only by management inmanagement office. Employer said monitor-ing was for safety reasons and would lowerWorker Compensation insurance rates. In fact,no one could determine how that could be. Dur-ing the height of organizing, two workers wholeft their work stations to go to restroom weresuspended for leaving their work station, with-out permission. Monitoring had chilling effecton workers attempting to organize for pur-poses of collective bargaining, Of the 100workers in the unit, 89 signed authorizationcards calling for a recognition election. Butwhen the final vote came, the union was 12votes shy of a majority. . ."There was an un-spoken fear that Big Brother would catchthem talking for or working for that union.64

Even if the truth of this use of monitoringfor alleged purposes of union-busting are not

and play a “substantial part” in decision to fire); and Connickv. Myers, 451 U.S. 138 (1983) (whether dissent is a matter ofpublic concern is determined by content, form, and context ofcommunication). In addition, 21 States have enacted whistle-blowing statutes. “Beyond Unions, ” Business Week, July 8,1985, p. 73.Employees in the private sector maybe protected under excep-tions to the employment-at-will doctrine. See footnote 49.

“’’From AFL-CIO Case Examples, submitted to OTA. Thetechnology allegedly used to monitor these employers was thevideo camera—a technology not considered in this report. How-ever, software for computer-based work monitoring could beused to accomplish much the same purpose as alleged in thiscase study, by recording the time away from a station, by mon-itoring internal electronic mail and employee-generated docu-ments, or by determining who was logged onto a particular workstation.

Ch 4—Electronic

born out, it nevertheless illustrates the height-ened potential of monitoring used to deter theefforts of whistleblowers or union organizers.This potential is also explored below in the con-text of telephone call accounting.

Telephone Service Observation

Telephone service observation was describedin chapter 3. It refers to the act of systemati-cally intercepting the content of employee tele-phone calls by listening in on them. This isoften done by a supervisor or quality controlspecialist to evaluate courtesy, accuracy, orcompliance with company guidelines. It is acommon practice in a host of businesses whichsell products or service customers over the tele-phone. As mentioned in chapter 2, service ob-servation is becoming integrated with variousforms of computer-based monitoring, the le-gal implications of which were consideredabove. This section will consider service ob-servation in isolation from other monitoringtechniques.

The use of service observation for illicit pur-poses—e.g., to discourage or listen in on em-ployee organizational activities, to discriminateagainst certain classes of employees, or to de-tect and punish whistleblowers—is subject tomuch the same legal analysis as computer-based monitoring, and presents few uniqueproblems for the law.65 Since service observa-tion is by nature a method of intercepting thecontent of employee communications, legalrights to privacy under State tort law may beimplicated, and while the employer often en-joys a qualified privilege to listen in on em-ployee phone calls, that privilege may be viti-ated by improper motive.66 Otherwise, the

6:)A very important qualification to this statement is TitleIII of the Communications Act of 1934, which prohibits ‘eaves-dropping” per se, without regard to the intent of the persondoing the eavesdropping, with certain crucial exceptions. TitleIII is considered more fully below under the manner and methodanalysis.

“’’[Defenses to common law claims of invasion of privacy in-clude the defense of ‘‘privilege’ The qualified privilege of thedefendant to protector further his own legitimate interest hasappeared in a few cases, as where a telephone compan-v has beenpermitted to monitor calls . . . ; citing: Schmulker v. Ohio BellTelephone. Co., 116 ,N.E. 2d 819 (1953) (time and motion studiesof employees); People I. .4pplebaum, 97 N.Y. S. 2d 807 (1950)

Work

.

Monitoring Law and Policy Considerations— —

● 1 0 5

employer’s purpose for monitoring is not a con-sideration separate and apart from the man-ner and method in which the service observa-tion is conducted.

Telephone Call Accounting

Chapter 3 discusses telephone call account-ing in detail. Telephone call accounting sys-tems are devices which can be attached to ei-ther the central office switch of the localtelephone network or, increasingly, to the pri-vate branch exchanges (PBXs) on the custom-ers’ premises. Call-accounting systems gener-ate detailed raw data on telephone usage;incoming and outgoing call numbers, totalnumber of calls made, total time on the line,etc (they do not provide information on the con-tent of the telephone call). This raw informa-tion can be processed by computer to providesummary reports of any type of telephoneactivity that the employer feels is relevant oruseful.

Call accounting is often used for purposesthat many might consider legitimate businessfunctions, such as allocating costs betweenvarious accounts in a business, billing custom-ers or clients for particular services, and keep-ing track of abuse or waste of local or long-dis-tance telephone services. The recently enactedCommunications Privacy Act of 1986 explicitlyrecognizes the need for call accounting in thecourse of providing communication services.67

The extent of personal phone use in the Fed-eral Government was examined in a call-ac-counting audit conducted by the President’sCouncil on Integrity and Efficiency (PCIE) inconjunction with the General Services Admin-istration (GSA) and Office of Management andBudget (OMB). That audit reported in the fall

(tapping own telephone to protect own interests); T1’heeler \’.Sorenson Mfg., 415 S.W.2d 582 ( 1967) (publication of wagesand deductions of employees to combat union dri~’e): and CitJ’of University Heights v. (’onky, 252 N.E. 2d 198 (1969) (spyingon suspected thief). Presser on Torts, \117

~?The Electronic Communications Privacy .Act of 1986, pub-lic IJtiw No. 99-508, 99th Cong., 2d sess., Oct. 21, 1986 amendsportions of the criminal code (Title 18) to accommodate digitalcommunications, computer networks, cellular telecommunica-tions, and other advances in communications. Its import fortelephone call accounting and service observation is discussedbelow where relevant.


of 1986 that on the average about 33 percentof long-distance calls made on the Federal Tele-phone System (FTS) were “unofficial,” that is,made for personal reasons.

Concerns were raised in Congress over theimplications of the PCIE audit for privacy andwhistleblowing. Problems might also exist,particularly in the private sector, if callaccounting were be used to frustrate unionorganizing efforts. As previously discussed,however, legal protections exist to address con-cerns over employee/union rights, and whis-tleblowers. Moreover, PCIE has adopted guide-lines to address some of the concerns over theprivacy and first amendment implications ofthe program.68 Among the protections are: a“conservative” approach to classifying callsas “unofficial,” prohibitions on invading theprivacy of the persons called from the agency,categorization of ‘calls possibly made to newsmedia, congressional offices, public interestgroups, and employee unions” as “official,” 69

and a prohibition on using data to single outindividuals or to conduct investigations.70 Itremains to be seen, however, whether and howthe PCIE initiative will be continued and be-come part of the regular internal auditing Fed-eral agencies. One department indicated thatin spite of its pilot study results—indicatingsignificant unofficial use of the departmenttelephone system-the agency had no plans forfurther efforts to reduce these misuses, becauseof concerns over privacy implications.71 If theaudit does become a permanent part in intra-agency audits, questions arise over whetherprotective guidelines will also become perma-nent, and if so, how such guidelines will be en-

‘8General Services Administration, Office of the InspectorGeneral, Office of Audits, “Guide for the PCIE Review of Fed-eral Telecommunications System (FTS) Utilization, ” part II,see especially app. XIII, pp. 65-74, July 3, 1985.

GgIbid p. 29+ ~tion IX of the “Guide” states that researchactivitie~ concerning calls to these destinations should be ter-minated, that the information cannot be released to manage-ment, and that the information cannot be used against the per-son who made the calls.

701 bid., p. 30. The Guide does recommend, however, that“serious or egregious” cases of misuse should be referred tothe agencies investigative organization for possible furtheraction.

710TA staff telephone interview with Department of EnergyOffice of Inspector General representative, fall 1986.

forceable. If, for example, a Federal employerwere to discipline or withhold promotion or in-formation from an employee based on that em-ployee’s contacts with the press, the employeemay find it difficult to prove that the em-ployer’s motivations for doing so were the re-sult of information obtained through telephonecall accounting.

Although the PCIE study guidelines forbidlistening to or recording conversations (as doesTitle III, discussed below), information on tele-phone transactions can yield a great deal ofinferential knowledge about an employee’s per-sonal and life outside of work. Knowing thatan employee contacted a particular newspaperone day before a damaging article is printedis sufficient to infer the content of the conver-sation, regardless of how that call is classifiedor whether it is subject to detailed investiga-tion. Moreover, records of the audit which con-nect names and numbers, while protected bythe Privacy Act, may nevertheless be subjectto disclosure through the Freedom of Infor-mation Act.72

Yet another difficulty with the PCIE studyguidelines concerns enforcement and disci-pline. At present the guidelines contemplatedisciplinary action, such as removal, suspen-sion, demotion, or reprimand only in cases of“extreme” cases of FTS abuse. The difficultyhere is with selective enforcement and uniform-it y of treatment. The PCIE guidelines offer noguidance on what constitutes “extreme” abuse,and no mention is made of who within eachexecutive agency will be responsible for en-forcement. This leaves considerable discretionto agencies’ Inspectors General in determin-ing who will be disciplined and under what cir-cumstances. It opens the door to claims ofdifferential treatment between low-rankingclerical staff and high-level government execu-tives. Since the scope of job responsibility isoften fairly narrow for low-level employees(e.g., claims processing at the Social Security

72 See Title 5 U.S.C. $552, infra. See also Notice of ProposedPrivacy Act Guidance for Call Detail Systems (OMB), 51 Fecf-erd Register 19982, 19984 (Friday, May 23, 1986), which dis-cusses disclosure in the context of a pxmanent FTS telephonecall-accounting system.

Ch. 4—Electronic Work Monitoring Law and Policy Considerations • 107

Administration), discriminating between “offi-cial’ and “unofficial” calls may be relativelyeasy. But for high-ranking personnel, whosecommunications are more likely to be a mixof “business’ and “pleasure, “73 such determi-nations may not be so easy. In other words,the informalities and ambiguities of the PCIEguidelines may give greater latitude to high-ranking employees than lower level employ-ees. Under the proper circumstances, this maygive rise to a claim of denial of equal protec-tion of the laws under the 14th amendment.

Finally, there is a difficulty of administer-ing the telephone call-accounting audit, par-ticularly if it is implemented on a permanentbasis. Although OMB has, under the PCIEguidelines, drawn up fairly extensive analysesof Privacy Act implications concerning em-ployee privacy and the disposition of records,the question remains: who will be responsiblefor overseeing the agencies in the conduct oftheir audits to ensure that the guidelines arefollowed? A recent OTA report” concludedthat OMB is not effectively monitoring suchbasic areas as: the quality of Privacy Actrecords; the protection of Privacy Act recordsin systems currently or potentially accessibleby microcomputers; the cost-effectiveness ofrecordkeeping; and the level of agency resourcesdevoted to Privacy Act limitations.

Such practical difficulties notwithstanding,there appears to be no dearth of legal protec-tion for activities of Federal employees thatthe law recognizes as legitimate and responsi-ble. However, the use of telephone call account-ing by private sector employers for illicit pur-poses is not so clearly proscribed by law. Infact, the only recourse of the private sector em-ployee against the employer for using callaccounting to track whistleblowing activitiesis the nascent legal right against “wrongfuldischarge. “75 Because of the principle of

—73FOr ~xmple, ig a ]Ong-digtmce call to set W a “business

lunch” with a good friend an “official” or “unofficial” call?“U.S. Congress, Office of Technology Assessment, Federd

Goverrnent Information Technology: Ekwtrom”c Record Systemsand Individual Privacy, OTA-CIT-296 (Washington, DC: U.S.Government Printing Office, June 1986).

TsRet~atory di9chmge for whistleblowing activities may becounter to public policy, and may thus constitute a wrongful

State action (see above), the private sector em-ployee can claim no first amendment right tospeak to the public or the press. Of course,statutes governing communications betweenemployees and labor organizations, discussedabove, apply with equal force to telephone callaccounting. It should be noted that, unless theemployer consents to the use of its telephonesfor labor organizational purposes, the em-ployee probably does not have rights understatute to protest the use of telephone callaccounting to track and squelch union com-munications. 76

Manner and Method

Computer-Based Monitoring

The use of computer-based monitoring as ameans for furthering the legitimate employerinterests raises few, if any, legal issues. Thefirst hurdle that an attorney challenging thepractice itself must meet is to identify a‘ ‘causeof action”— a legally recognized right thatforms the basis for a lawsuit. The only rightremotely relevant to monitoring is the rightof privacy .77

Privacy is a broad value, representing con-cerns about autonomy, individuality, personalspace, solitude, intimacy, anonymity, and ahost of related concerns.78 Since monitoring

discharge. See, e.g., ~onge v. Beebe Rubber Co, 114 N.H. 130,316 A.2d 549.62 A. L.R.3d 264,25 EPD P 31,643; and R. Murgand J. Sharman, “Employment at Will: Do Exceptions Over-whelm the Rule?” 28 Boston College Law Review 329 (1982).Moreover, employers may be held to their own internal state-ments of policy concerning matters such as privacy and treat-ment of employees with respect to monitoring. See, e.g., Wool-ley v. Hoffman-LaRoche, Inc., 99 NJ 284,491 A.2d 1257 ( 1985),which held that the employer’s official statement of policy forits employees created a contract of employment for an indefi-nite period.

TGunder the. NatiOn~ Labor Relations Act, 29 u.S. C. $158,for example, it is not unlawful for an employer to observe em-ployee activities at the worksight during working hours to seeif union activity is being conducted on company time. IV. L.R.B.v. R.C. hlahon Co. 269 F.2d 44 {6th Cir. 1959).

77vfioug th~rieg under tort law, such as assault, intentionedinfliction of emotional distress, defamation, outrage, and may-hem were considered, but lack sufficient connection to the typesof activities involved in computer-based monitoring.

M% u s ConWess, office of Technology Assessment, Fed-. .ertd Government Information Technology: Electrom”c RecordSystems and Individual Privacy, OTA-CIT-296 (Washington,DC: U.S. Government Printing Office, June 1986).


is one method of obtaining information aboutand control over an employee’s activities, someof these concerns may be relevant.

Although monitoring may affect culturallyheld values, there are serious problems in at-tempting to stretch the legally enforceablevalues regarding privacy, whether based oncommon law, statute, or the Constitution, tocover the types of monitoring considered in thisreport .79 Although 34 States have adoptedlaws regarding employer use of polygraph ma-chines, and 21 have laws addressing the pri-vacy of employee records,80 none have so faradopted legislation restricting monitoring, assuch. One State, Massachusetts, has attemptedto enact legislation that might prohibit com-puter-based monitoring per se, but the legis-lation was found to violate the due process andequal protection clauses of the U.S. Consti-tution.81

79The ~o~t widely accepted privacy framework under tortlaw is that offered by Presser. See “Privacy, 48 Cah”form”a LawReview, 383 (1980). Each of the four distinct torts–intrusion,disclosure, false light, and appropriation–require a physical in-vasion of the person or his/her property or personality and pub-lication of the information gained by the invasion. Neither ofthese criteria is applicable to monitoring considered in this re-port. Moreover, consent to monitoring, either explicit or as aimplied condition of the employment contract, would probablyvitiate whatever claims an employee might have. Privacy un-der statutory law, at both the Federal and State level, concernsprincipally privacy of employee records, and while not relevantto the act of monitoring itself, may be relevant to records gen-erated and kept by the monitoring system. This is consideredbelow where relevant. Privacy under the U.S. Constitution hastwo main branches; rights under the 14th amendment, designedto protect family relationships, Roe v. Wade, 410 U.S. 113 (1973),Griswold v. Connecticut, 381 U.S. 479 (1965); and rights underthe Fourth Amendment, designed to limit unreasonable searchesand seizures. Katz v. Um”ted States, 389 U.S. 347 (1967), andprogeny. Both of these branches require state action. Even sup-posing that monitoring might be considered a “search” underthe fourth amendment, it is unlikely that an employee wouldbe found to have a “legitimate expectation of privacy” in hisor her performance at a given task. Id.

‘OThese figures are from Compilation of State and FederalPrivacy Laws (1984-85 cd.), Privacy Journal (Washington, DC:Privacy Journal), and January, 1986 supp., but see: Congres-sional Research Reports, Mar. 21, 1986, which reports that 22States have adopted laws regarding employer use of polygraphmachines, and that 10 have adopted laws addressing employeeaccess to records.

‘*The legislation prohibited “the use of any monitoring de-vice, without the express consent of the employee, by meansof which the surveillance of employees might be effectuated.The term “monitoring device” included “any device, electronic,mechanical, visual, or photographic’ by which ‘appearance, ac-tions, or speech” could be monitored. cite. Re: Opinion ofJustices, 356 Mass 756, 250 N.E.2d 448 { ).

Furthermore, some State courts may holdemployers to internal statements of policy re-garding employee privacy, and may awarddamages for “unjust termination” of employ-ees who seek to withhold information underthese policy statements.82 This approach hasnot been widely accepted in the courts, and thecorporate policy statements seldom addressmonitoring explicitly.

There are several situations in which com-puter-based monitoring may implicate certainlegal rights. The first is where the monitoring,which ordinarily reveals quantitative informa-tion about the amount of work done and thetime spent doing it, reveals “personal” infor-mation as a byproduct. For example, if the onlydiscretionary breaks allowed a monitoredworker are for trips to the bathroom, the com-puter may allow an employer to glean this in-formation by the frequency and duration thatthe employee is logged off the terminal.83 Inthis situation, a breach of employee privacyis arguably present.84 Another situation con-cerns the monitoring of personal computer use,and the auditing or editing of employee com-puter files. If the employer permits an em-ployee to use computer files to store personalinformation, or electronic mail capabilities forpersonal messages, a breach of privacy maybe found under a number of theories if the em-ployer subsequently examines or reveals the85 Finally, to ‘hecontents of the files or mail.

8’Op cit., Woolley v. Hoffman-LaRoche, 99 NJ 284, 491 A.2d1257 (1985).

‘3See: Karen Nussbaum and Virginia DuRivage, “ComputerMonitoring: Mismanagement by Remote Control, 56 Businessand Society Review 16 (winter 1986); and Nine to Five: The Na-tional Association of Working Women, Computer Monitoringand Other Dirty Tricks, April 1986.

“The tort of intrusion may be applicable, if such monitoringamounts to an invasion of the employee’s solitude or seclusion,even if there is not physical intrusion. Presser on Torts, p. 807.If the private activity is publicized, there may also be a tortfor public disclosure of private facts.

“5For public sector employees, an action may arise directlyunder the Constitution. For private sector employees, a tortaction may lie. The Electronic Communications Privacy Actof 1986 is ambiguous as to whether an employer might accessthe contents of its employees’ computer files. The prohibitionsof the Act speak to an “electronic communication while it isin electronic storage. “ 18 U.S.C. j2701(a) (as amended). Whileperhaps not intended as a communication when written, all filesin a personal computer are potentially communicable. Further,the Act’s prohibitions do not apply to “the person or entityproviding a wire or electronic communications service, ” or to

Ch. 4—Electronic Work Monitoring Law and Policy Considerations . 109

extent that the transactions monitored by com-puter become part of the employee’s record ofemployment, compliance with procedures setout in the Privacy Act of 1974 (governing onlyFederal employees) or several State privacystatutes may be necessary.

Telephone Service Observation

Unlike computer-based monitoring, whichprimarily raises serious legal issues only whenit is used to promote ends that are illegitimate,the legal difficulties with telephone service ob-servation lie primarily in the manner in whichit is carried out.

The principle law governing service obser-vation is still Title III of the Omnibus CrimeControl and Safe Streets Act of 1968, subjectto the amendments involved in The ElectronicCommunications Privacy Act of 1986.X’ Title111 forbids the interception of the contents oftelephone calls by government or private per-sons, except by judicial authorization. 87 Thisblanket prohibition on “wiretapping,” how-ever, is subject to two exemptions that per-mit telephone service observation—the consentand business extension exemptions. 88 B o t hexemptions have been construed narrowly bycourts. Consent cannot be implied from the

~ ‘‘user of that st,r~ice with respect to a communication of ori ntxnded for that u s e r . I R [J. S.C. \2701(b) (as amended).

“‘l-itlt’ 111 of the c)mnihus Crime Control and Safe StreetsAct, 1 ~ [J .S. C. ; : 25102520 ( 1976). Public I,aw No. 90-351, \802, 82 Stat. 212, as amended by ‘1’he Electronic Communica-tions Pri\acjr Act of 1986, Public I,aw No. 99-508, 99th Cong.2cf Sess,, (M. 21, 1986.

‘“The relevant portion reads:F;xcept as otherwise specifically provided in this chapter anyperson who --

(b) willfullj US(+, mdea~ ors to use, or procures any other personL() use of (,n(lea~(jr t () use any electronic, mechanical, or other de-\rII(J t ~) Intercept any oral communication.

shall be fined not more than $10,000 or imprisoned not morethan fi~c year-s, or both1 H U S.(’. \25 1 1( I )(b).

The statute also provides for a civil remedy and statutorydamages. 18 U.S.C. 12520.

“Section 251 li2)(d) of the law permits interception “whereone of the parties to the communication has given prior con-sent to such interception, and Section 251 l(l)(b) excludes fromco~’erage ‘‘any telephone or telegraph instrument, equipmentor facility, or any component thereof. . . ,being used by the sub-scriber or user in the ordinary course of its business; .‘ I naddition, communications common carriers may “intercept, dis-close, or use (an employee’s telephone conversations) in the nor-mal course of his employment while engaged in any activitywhich is a necessar~ incident to the rendit ion of his wmice or

employee’s knowledge of a capability for mon-i tor ing , 89 but must instead be based on aknowledge (or imputation of knowledge) thatcertain types of phones or phone conversationswill be listened to.90 Similarly, the businessextension exemption applies only to the inter-ception of particular calls as a part of the en-terprise’s ordinary course of business,91 a n deven at that, one court has held that personalcalls may be intercepted only to determinetheir nature, but never their content.92

Title III and the Electronic communicationsAct of 1986 appear to be the exclusive, albeitextensive, legal framework for issues that mayemerge from telephone service observation.

Other legal theories, such as the common lawright of privacy and (for governmental employ-ees) the fourth amendment prohibition on un-reasonable searches and seizures, while possi-bly forming the basis for a legal action, areunproven in the context of service observation.“A recent case held that, although public em-ployees are protected by the fourth amend-ment, their expectation of privacy must bebalanced against the government’s need forsupervision, control, and efficient operation ofthe workplace.93 Moreover, the government isnot held to a “probable cause” standard; in-stead, its actions are assessed under a “reasona-bleness under the circumstances” standard.Title III applied only to aural communications,but The Electronic Communications PrivacyAct of 1986 extends the coverage of Title 18to address analogous concerns present in theservice observation of the content of data com-munications. 94

to the protection of the rights or property of the carrier of suchcommunication . . .“ 18 U.S.C. \251 l(2)(a)(i).

‘9 Watk”ns v. J!XM. Berry& Co., 704 F.2d 577 (1 lth Cir. 1983);Campiti v. Walonis, 611 F.2d 387 ( 1st Cir. 1979): Crmker v.L1.s. Depfltment of Justice, 497 F. Supp. 500 (D.Corm, 1980),

‘U’l$’atkins v. L.M. Berry, supra; Jandik ~’. i’illage of Brook-fieki, 520 F. Supp. 815 (N.D. Ill. 1981).

$11 ~rat~”ns v. L.M. Berry & Co., supra; citing Briggs ~’. Amer-ican Air Filter Co., 630 F.2d 414 (5th Cir. 1980).

‘2 W’atkins v. L.M. Berry & Co., supra at 583. 1 n essence, thecourt held that, once the personal nature of the call is known,the employer must hang up.

‘iO’Cmnm ~. Ortega, 107’ S. Ct. 1492.55 USLW 4405 (19871.‘iTitle I I 1 convered only oral communications, 18 U.S.C.

I251o., cf. [[.S. v. New York Telephone Co., 434 U.S. 159( 1977)holding that a communication under Title 111 must be capableof being o~’erheard.


Telephone Call Accounting

Many of the legal issues surrounding the useof telephone call accounting center on the in-cidental information generated by a call-ac-counting system. In other words, although theemployer may not purposely set out to infringeemployee rights, many of the by-products ofcall-accounting systems may in fact threatenemployee privacy. In the act of tracking re-cipients of calls originating from certain phonenumbers, employers must, of necessity, obtaininformation on the identity of the personscalled, and the nature of the call (business ornonbusiness). Depending on how the audit isconducted, and how closely focused on indi-viduals it is, a‘ ‘picture’ of extra-employmentactivity may be obtained merely from the iden-tity of the destination phone numbers, evenif the intent of the audit is to identify non-business-related calls.95 Once the informationis collected, it maybe intentionally or acciden-tally disclosed to people whom the employeewould prefer remain unaware. Although a call-accounting audit may disclose misuse, suchmisuse may not be the fault of the employee(especially when others have access to the em-ployee’s phone)–a claim that maybe hard toprove.

Federal employees are the most protectedsegment of the labor force. If the records gen-erated by the telephone call-accounting sys-tem form part of a “system of records” per-sonally identifiable to particular individuals,then, under the Privacy Act of 1974, the Fed-eral employee is subject to a number of proce-dural safeguards concerning notice that suchrecords are being collected, the subsequent useto which they can be put, the right of the em-ployee to corrector amend the records, the ne-cessity, and the acquisition for lawful purposesof those records.96

For public employees in general, it is unlikelythat a constitutional claim under the fourth

—95 Calls to collection agencies may reveal debt trouble; calls

to counselor may reveal psychological or marital trouble; callsb employers in similar businesses may reveal an intent to changejobs; and calls to the news media may reveal the source of“leaks.”

%5 UOS.C. j552(a), jnf=~.

amendment could successfully be broughtagainst the practice of telephone call account-ing—even against its surreptitious use by po-lice in order to obtain evidence for a criminalindictment .97 The Electronic Communica-tions Privacy Act of 1986, while providingstronger protection than the fourth amend-ment by requiring a court order for the appli-cation of pen registers and trap and tracedevices, 98 is applicable to telephone call ac-counting. 99 However, depending on how theinformation gleaned from call-accounting sys-tems is used and whether it is disclosed, allemployees may have rights under common lawtheories of privacy or defamation.

Effects

Aside from the abusive purposes and meth-ods of electronic monitoring discussed above,the most salient legal issue presented by mon-itoring concern its health-related effects on par-ticular workers. Other, less tangible, effects

97 Pen registers, which are devices that attach to a telephoneline to record dial pulses, may be used in law enforcement toobtain information on suspects without the need of a searchwarrant. Sm”th v. Maryland, 442 U.S. 735 (1980). By extension,the use of call-accounting systems (that achieve very much thesame result-albeit, in a more detailed fashion), which often forman integral part of modem PBXS, would seem to raise no uniquefourth amendment problems, especially when they are used onthe employer’s premises and it is known by employees that theyexist (thus raising no “subjective expectation of privacy”).

9818 u s c Ch. 206 “pen Registers and Trap and Trace. . .Devices. ’

~Title 18 has been amended so as to specifically exclude a“provider of electronic communication seMce to record the factthat a wire or electronic communication was initiated or com-pleted in order to protect such provider, another provider fur-nishing service toward the completion of the wire or electroniccommunication, or a user of that service, from fraudulent, url-kiwful, or abuse use of such sem”ce; ” 18 U.S.C. 2511( 3)(h)(ii)(emphasis added).

Call-accounting software might arguably be a “pen register”for purposes of The Electronic Communications Privacy Actof 1986, since, like SMDR PBX equipment, it is defined as “adevice which records or decodes electronic or other impulseswhich identify the numbers dialed or otherwise transmitted onthe telephone line to which such devices is attached. . . .“ How-ever, SMDR equipment and software is excepted from the pro-hibitions of the act: “(pen register) does not include any deviceused by a provider or customer of a wire or electronic communica-tion service for bilh”ng, or recording as an incident to biL!i”ng,for communications services provided by such provider or anydevice used by a provider or customer of a wire communicationservice for cost accounting or other like purposes in the ordi-nary course of its business . . .” 18 U.S.C. $3126 (emphasisadded).


are sociological in nature, and concern the im-pact of monitoring on the overall climate ofwork in the United States.

The literature on stress and work monitor-ing is not broken down cleanly into the threecategories of monitoring dealt within this re-port. Computer-based monitoring, telephoneservice observation, and telephone call account-ing may each entail widely different work envi-ronment factors (e.g., different organizationfactors, different physical relationships between the employee and the technology onwhich the employee is working, and differentexpectations). Thus, any particular findings onstress are likely to vary widely between typesof work monitoring. Nevertheless, most of thelegal analysis that follows will hold true so longas stress can be shown to be caused by or asso-ciated with the particular type of monitoringin question.

This section relies on the analysis developedin chapter 2 examining the evidence for com-puter monitoring as a cause of stress, and ap-plies relevant law in fight of this evidence. Theprinciple conclusions of chapter 2 are: 1) thatevidence that computer monitoring, per se,causes stress is suggestive, but not conclusive;and that 2) many other aspects of job designand work enviornment-e.g., computer pacing,heightened work pressure, routinized activi-ties, variable workloads, lack of control overthe task, lack of decision latitude, lack of peerand supervisory support, and fear of job loss—may also cause stress among VDT office work-ers. Research to date has not succeeded in sep-arating the effects of computer monitoringfrom effects of these other workplace factors,insofar as stress is concerned.10

IOOStress due to work monitoring should be considered sepa-rately from that due to the use of Video Display Terminals(VDTS) per se. A recmt OTA report concluded that “evidencefor a relationship between stress-relati disease and VDT workis still sparse. ” U.S. Congress, Office of Technology Assess-ment, A utmnation of America Offices, OTA-CIT-287 (Wash-ington, DC: U.S. Government Printing Office, December 1985),p. 150. In part, this is due to the methodological problems inattributing stress and stress-related ailments to any one factoror combinations of factors in the workplace. The OTA reportdid conclude, however, that electronic monitoring in general isassociated with the symptoms of chronic arousal, and can leadto increased anxiety, fatigue, psychosomatic complaints, andjob dissatisfaction. Id. at p. 130. In this regard, the report did

Many of those opposed to work monitoringfocus on its health, and particularly stress-related, effects. Moreover, many of the ‘‘casestudies” submitted to OTA by a variety ofunions emphasize the deleterious effects thatmonitoring has on employees’ health. The ap-proach of this section will therefore be to takethe assertion that monitoring causes stress andhealth-related problems as a given, and ask:how might present law address concerns overthese effects of monitoring?

All State jurisdictions recognize stress asa compensable injury, either under their tortor Worker’s Compensation laws.101 However,“stress” is subject to a wide variation in defi-nition in the way it is manifested, and the man-ner and context in which it is inflicted. Stand-ards of proof for its existence, and the degreeof injury necessary for compensation, are de-terminative of whether monitoring-inducedstress (if it can be shown to exist) will rise tothe level of a legally recognized claim.

Worker’s Compensation, which was estab-lished in all 50 States to provide compensa-tion on a “no-fault” basis for the loss of abil-ity to earn wages, is a substitute for employertort liability. Most Worker’s Compensationstatutes require that the injury be accidental,and that it arise out of or in the course of em-ployment. Courts have read these require-ments expansively in recent years, so that even“accidents” that are slow in manifestation andwhich rise out of employment-related risk arecompensable.102 This means that, as a thresh-old matter, chronic stress caused as a resultof monitoring may be compensable.

not separate computer-based monitoring from customer serv-ice observation and call-accounting systems, as is done in thisreport. However, the way in which monitoring was described,as a system of electronic supervision or feedback in work orga-nization, would include the first two forms of monitoring con-sidered in this report. Moreover, machine pacing—the use ofa computer to control when and how fast a task is performed—can lead to anxiety, depression, boredom, dissatisfaction, fre-quent health complaints, and decreases in productivity withincreases in error rates. Id. at 128-29; citing Salvendy and Smith(eds.), llac~.ne pacing and Occupational Stress (London: Tay-lor & Francis, Ltd., 1981).

101 IB Lmson, The Law of Workmen Compensation, $42 in-fra (1982), and Presser, LBW of Torts, $12.

10Z1 A I.arson, The Law of ~Odfmi31 Compensat ion.5$37.00-39.00 and $$6.00-8.00, infra


Even if stress meets these threshold require-ments, not all States recognize psychologicaleffects as compensable injuries caused bystress. 103 Only a handful of States would al-low recovery for monitoring-induced stress, ifthat stress can be characterized as “not un-, .usual, ‘ ‘ or “not in excess ofemployment. “104 Otherwise,compensable injury underpensation laws, stress must

everyday life orin order to be aWorker’s Com-be “unusual, ’’l”’

or even “sudden,” “frightening,” or “shock-ing. "l06 As electronic monitoring gains ac-

10 JFIOrid~, GW~gia, K~SaS, Louisiana, Minnesota, MOnt~a~Nebraska, Ohio, and Oklahoma do not recognize purely mentalor emotional injuries as the result of stress. Emotional Stressin the Workplace, op. cit. All jurisdictions recognize stress-related ailments, whether “mental” or “physical,” that havean antecedent physical injury. And, with the exception of Ohio,all States recognize “physical” disabilities resulting from stress.1A Larson, $42.22 et seq.

IOiCalifornia, Hawaii, Kentucky, Michigan, New Jersey, Ore-gon, and West Virginia. See generally “Emotional Stress in theWorkplace–New Legal Rights in the Eighties, National Coun-cil on Compensation Insurance, 1985.

10fiArizona, Arkansas, Maine, Massachusetts, New Mexico,New York, Pennsylvania, Rhode Island, Washington, Wiscon-sin, and Wyoming. Id.

‘wIllinois, Maryland, Missouri, Mississippi, South Carolina,Tennessee, Texas, Virginia. Id,

ceptance as an ordinary part of the work envi-ronment in which it is deployed, any stress thatit causes (if any) is arguably “not unusual. ”In order to be recognized in most States, there-fore, electronic monitoring-induced stress mustmanifest itself in a physiological symptom tobe compensable.

Finally, many States today recognize thetort known as “intentional infliction of emo-tional distress. ” Although compensation foremotional distress previously required somesort of physical invasion or injury, such as abattery or assault, this is no longer the law ina substantial number of jurisdictions. This not-withstanding, monitoring-induced stress is un-likely to be actionable under tort law. First,the distress-producing act must often be of an“extreme and outrageous” nature—a charac-terization that is probably not fitting to elec-tronic work monitoring. Secondly, as with thetort of invasion of privacy, consent (found inthe implied or explicit terms of an employmentcontract) will probably vitiate an employee’sclaim. Finally, many States still require thatphysical illness or some other nonmental ef-fect be present before allowing recovery.

PART IV: CONCERNS NOT ADDRESSED BY LAW

Table 16.—A Framework for Addressing Electronic Work Monitoring

Concern Criteria - Example of applicable law Possible “gaps” in law

Purpose of monitoring–. . . . . . . . . Fairness - Relevance National Labor Relations Act; Due process—typeCompleteness Civil Rights Act; Merit System guidelines for privateTargeting Principles (as administered in employees

EEO, OSHA, ERISA, EPA, etc.a);State Law on Privacy; Constitu-tional Lawa

Manner and method ofmonitoring . . . . . . . . . . . Autonomy Intensiveness State Law on Wrongful Dis- Privacy in transactional

Dignity Intrusiveness charge; State Law on Privacy; information; “HumanPrivacy Visibility PCIE Guidelines; Title Ill of Om- Rights’’—type law;

Type nibus Crime Control and Safe laws requiring noticeLeakiness Streets Act; Electronic Commu- of monitoringPermanence nications Privacy Act; National

Labor Relations Act; PrivacyAct of 1974a

Effect of monitoring . . . . . . . . . . Health Frequency Worker’s Compensation Statutes Guidelines/regulationsStress Continuousness on Stress-Causing Labor on stress—inducing

Regularity labor practicesControl

aApplle~ only to Federal employees

SOURCE Off Ice of Technology Assessment, 1987

Ch 4—.Electronic

If we look at the types of concerns raisedby electronic monitoring, and at those ad-dressed by law, several broad conclusionsfollow:

●

●

●

●

Purpose

In general, public employees are better pro-tected against “unfair’ monitoring practicesthan private sector employees. Constitu-tional due process protections afford pub-lic sector employees the opportunity to chal-lenge dismissals, demotions, or other actionsbased on monitoring that is irrelevant, un-fairly targeted, or incomplete. Although thedoctrine of employment-at-will is graduallybeing eroded in State courts, a suit for un-just dismissal of private sector employeesbased on unfair monitoring is unlikely tosucceed.

Aside from provisions made in union con-tracts, no law compels an employer to im-plement monitoring with fairness, unless itcan be shown that the employer has takenactions against certain employee(s) based onrace, sex, or religion or for motivations thatare against narrow public policy exceptionsto the employment-at-will doctrine.

• Electronically monitoring formerly unmonit-ored tasks may change the very nature ofthat task, by accommodating the task to thesystem of measurement. While some em-ployees may object to this as an unbargainedfor change in job description, no legal pro-tections, aside from employment contracts,exist.

Manner and Method

Monitoring most often involves the collec-tion of transactional, rather than substan-tive, information about employees’ perform-ance. No privacy protections exist againstthe collection of transactional informationon employees activities while at work. Forexample, no law prevents the collection oftelephone usage data in a call-accountingsystem, or of performance data in a com-puter-based monitoring system. If, however,

Work Monitoring Law and Policy Considerations ● 1 1 3

transactional data becomes part of a per-sonally identifiable record, then the subse-quent use and disposition of that record isregulated by both Federal and State law.

With some exceptions, no law prevents ane m p l o y e r f r o m u s i n g t h e m o n i t o r i n g s y s -tems considered in this report in a secretive,low visibility manner. For example, an em-ployer is not under a positive duty to revealto its employees the fact that their keystrokesare being counted, or that their outgoinglong-distance calls are being documented.Unless the employee has an expectation ofprivacy in the activity or location while atwork, the employer is free to collect as muchinformation on the employee performanceas it sees fit.

Although employees may regard some meth-ods of monitoring as an assault on their dig-nity or autonomy, there is no legal right tobe treated with dignity or as an autonomousperson. Unless the monitoring technique isintrusive—invading either the bodily or

mental integrity of the person (as, perhaps,in drug testing or brain wave analysis)—there are no legal protections against moni-toring because it is “dehumanizing.” Al-though monitoring may affect interpersonaland power relationships at work, no law pre-vents employers from using intense, low vis-ibility monitoring. For example, using com-puters to set the pace at which tasks areaccomplished, to measure the employees’performance, or to document time awayfrom a terminal, are not prohibited by law.

Effects

Although some forms of monitoring maycause stress, and may therefore have healtheffects, no law currently protects workersagainst stressful environments, whether thestress is caused by monitoring or by otheraspects of the work environment. Lawmak-ing with respect to stress in the work envi-ronment is not unprecedented, however, andseveral foreign countries have adopted leg-islation that attempts to address stress inthe work environment.


● In some cases, stress may be a compensa-ble injury under Worker Compensation stat-utes, but stress-related health effects are dif-ficult to prove, and are not accepted in amajority of State courts.

What Does the Future Hold?

Depending on the influence of a variety ofbusiness, economic, and social factors (see partII), the next 10 to 15 years may see substan-tial changes in monitoring technologies andsettings in which they are conducted. Thesechanges may raise a whole new set of concernswarranting continued congressional scrutiny.

Incremental Changes

Today’s monitoring techniques, which arein and of themselves neither illegal nor clearlyin conflict with employer-employee custom,necessarily form a precedent for future moni-toring techniques. As these techniques becomemore sophisticated and permeate the workenvironment, law and lawmakers may have adifficult time distinguishing between each newinnovation and the one that preceded it. Thelaw and practice that grows up around a par-ticular form of monitoring may easily assimi-late anew, incremental change in the technol-ogy or application. The cumulative changes inwork environment may be great, despite theirgradual and hence imperceptible nature. Theframework for analyzing claims to privacy,which relies on an assessment of an individ-ual’s “reasonable expectations, ” 107 can easilybecome simple descriptive statements of whatthe monitoring milieu is, rather than prescrip-tive statements of what ought to be. An indi-vidual’s knowledge that certain technologiesare capable of intruding into previously pri-

107K8~z v. Urn-ted Stateg, 389 U.S. 347 (1967) announced theconstitutional “reasonable expectation of privacy” standard thathas guided the Supreme Court ever since. It has two compo-nents: whether the individual actually expected that his or heractivity remain private, and whether that expectation is onethat society is prepared to accept as reasonable. This standardhas gradually been applied in nonconstitutional, tort-privacycases.

vate realms may vitiate claims that the indi-vidual’s expectation of privacy was a reason-able one.l08

Work Environment Changes

Much of employee behavior in the past wentunobserved or undocumented simply becausethe technical facility for monitoring it did notexist, or was too cumbersome to employ. Asnoted in chapter 2, however, the use of mod-ern information technology enables employersto keep track of more information on employeeperformance in much greater detail. Given thisnew ability, much of the “looseness” of previ-ous work environments may be reduced oreliminated. What was in the past a de factoperquisite of the job, such as a limited abilityto make nonwork-related phone calls, or an oc-casional break from a given task, may in thefuture become grounds for discipline or dis-missal. In such a case, the question is notwhether the employer is “within his rights, ”but whether the work environment should be-come so rigorously controlled as to eliminateall discretionary employee activity.

Qualitative Changes

As discussed elsewhere in chapter 1, a cleardistinction can be made between work moni-toring and worker testing; the former is anevaluation of the performance or behavior ofan employee, while the latter is an evaluationof an employee’s physical or mental state. Intheory, it maybe possible for legal rules to beframed in accordance with this distinction.However, while the distinction may be rela-tively easy to make in theory, it is breakingdown in fact. Research in the field of psy-chophysiology, discussed elsewhere in this re-port, may be able to correlate behavior withpsychophysiological states; blurring the bound-aries between monitoring work and monitor-ing the worker.

108For exmple, ~ c~”fo~”~ V. ChO)O, a r=nt case h ‘Mch

police used an aircraft and camera to obtain evidence of mari-juana growing in a suspect’s backyard, the Court concludedthat “[t]he Fourth Amendment simply does not require the po-lice traveling in the public airways . . . to obtain a warrant inorder to observe what is visible to the naked eye. ” The stand-ard for determining what expectations of privacy are reason-able is, in part, dependant on the state of technology for intrud-ing on that privacy.


PART V: POLICY OPTIONS

Before addressing the problem of how Con-gress might act, it is first necessary to con-sider whether and when action may be appro-priate. Some factors suggest that a “wait andsee’ posture may be appropriate; uncertaintyabout whether monitoring causes stress, thelack of judicial precedent, the possibility of pri-vately negotiated restraints on monitoring,and marketplace checks on monitoring areamong these. Other factors indicate that Con-gress may want to act now to alleviate grow-ing concern about monitoring in the workplace.These include the lack of union representationin the bulk of the monitored work force, inade-quacy of current law to address concerns overhealth, privacy, and dignity, difficulties of leg-islating against powerful economic interestsat the State level, and increasing sophistica-tion of the technology itself. Several possibledirections of Federal policy are describedbelow.

Option 1: Take no Federal action concern-ing work monitoring at this time.

Questions of the fairness of work monitor-ing practice would be left, as they are atpresent, in the hands of stakeholders, em-ployers and employees. In industries where la-bor unions are active, collective bargainingwith regard to technology change, monitoring,and methods of evaluation should continue un-der current rules.

Although many unions have adopted posi-tions opposing electronic work monitoring (seetable 11), their bargaining strength with re-spect to it, whether by informal negotiationsor by formal collective bargaining or arbitra-tion, is probably not great. However, someforms of monitoring take place within specificindustries or companies. An argument cantherefore be made that, pending the develop-ment of a longer history of negotiations be-tween labor and management on this issue,monitoring is best addressed at the union level;the parties concerned are most familiar withthe specific problems, and contracts, rather

than national policy, are the best way of ap-proaching what appears to be situation-specificproblems (see part III). Under these circum-stances, Congress may want to avoid legislat-ing on the issue of monitoring per se, and in-stead make monitoring an item for compulsoryarbitration or collective bargaining under Fed-eral labor law.

This, of course, does not necessarily ensurean outcome that is satisfactory for the majorityof monitored workers, who are not unionizedand are therefore powerless to negotiate a fairmonitoring practice, or any other aspects ofthe quality of work life, through the collectivebargaining process. Furthermore, a growingsegment of the work force are temporary work-ers, who, since they come and go on a weeklyor monthly basis, have little ability to improvethe quality of worklife.

There is the argument that natural “mar-ket forces” may tend to limit unfair monitor-ing and preclude the need for congressional ac-tion even on behalf of nonunionized workers:employee backlash, low morale, and high turn-over should dissuade employers from monitor-ing practices that their workers find onerous.If monitoring is indeed stress-producing, thenemployers who use it will inevitably see theeffects of stress on diminished quality and out-put of its product or service. The response tothis is that many monitored jobs comprise rou-tine work subject to and indifferent to a highturnover rate. And, in many instances, highattrition works to the employer’s benefit (bylowering the costs of pension, salary increases,etc.). Thus it is not clear that “natural’ checkswill be sufficient to ensure that monitoring isnot abused.

If natural checks are not sufficient, politi-cal action is still available. Unions and otherinterest groups have worked to pass State levellegislation on monitoring, service observation,or VDT health and safety. These activities willprobably continue. Some of these attemptsmay be successful, giving rise to a variety oflegislative or regulatory approaches to deal-


ing with issues related to electronic monitor-ing. Some may serve as models for Federal ac-tion at some later time, should the need for theharmonizing effect of national legislation beseen more clearly in the future.

Option 2: Establish whether stress effectsof electronic monitoring are an occupa-tional health hazard; if they are, considercreating Federal legislation or regulationsgoverning the use of electronic moni-toring.

The effect of monitoring on stress andhealth-issues which might provide the policy-maker with the most direct and least value-laden approach to acting on monitoring–is ina state of scientific uncertainty. There existfew authoritative studies on the effects of elec-tronic monitoring on health. Many studies andinformal polls of workers suggest that moni-toring has stressful effects, and there is a cer-tain common sense appeal to the idea thatworking in fast paced, highly monitored envi-ronments may be very stressful. However, notmuch is known about the types of monitoringthat are stressful, how stress might be reduced,or how stress due to monitoring manifests it-self (if at all) in physiological symptoms. Un-til more is known about the effects of moni-toring on health, policy action under a “stress”rationale may be premature. The policy makermay consider it appropriate, therefore, to ini-tiate studies on stress in the workplace, andon the role that monitoring plays in such stress.

The National Institute of Occupational Safetyand Health would seem to be the logical agencyto supervise or carry out studies of stress asa workplace hazard. Specific studies of moni-tored workers would have to be done with aneye to understanding the effects of monitor-ing independent of other workplace stressors,a major deficiency in existing studies. In addi-tion, however, it would be useful to understandmore about the phenomenon of workplacestress in general, given the rising number ofworker compensation claims and other evi-dence of the growing importance of stress inoccupational health. Research may reveal thatother factors in the workplace are as impor-

tant as or more important than monitoring incontributing to stress-related illness, and thatthese should also be covered by protective leg-islation or regulation.

Option 3: Consider Federal legislation aimedat gaps in current law. This could be intwo possible directions: general legislationaimed at establishing certain rights foremployees within the workplace or surgi-cal legislation aimed at specific monitor-ing practices.

There have been no court cases challengingthe types of monitoring considered in this re-port. Two conclusions can be drawn from this.The first is that, until the judiciary acts, Con-gress has very little clue (aside from analysesof the sort found in part III of this chapter)as to the type of legal inadequacies it shouldaddress, and ought therefore to wait to legis-late on work monitoring. The second is thatcurrent law is inadequate to even form the ba-sis for a lawsuit, and that Congress must takethe lead in providing rights to monitored em-ployees, should it decide that certain forms ofmonitoring are pernicious.

Current worker protection legislation givesworkers a variety of rights, such as the rightto organize, to bargain collectively, to mini-mum wage, and increasingly, the right to knowabout health and safety hazards that form partof the working environment. However, U.S.law has not heretofore involved itself deeplyin quality of worklife issues nor in issues ofpersonal privacy or dignity in the workplace.There is no legal right to be treated with dig-nity or as an autonomous person. There is nolegal right to a well-designed, interesting job,nor is there law that compels employers to con-sider employee input in decisions about newtechnology or new monitoring procedures. Tothe extent the law treats privacy in the work-place, it looks to a standard of what an em-ployee might reasonably expect to remain pri-vate; as mentioned earlier in this chapter, thisstandard may fail as a guide for action in theface of employer’s increasing use of monitor-ing, surveillance, or testing technologies.

Ch 4—Electron/c Work Monitoring Law and Policy Considerations ● 117

That these issues are not currently addressedin law does not mean they could not be. Asis discussed in appendix A, a number of othercountries have quality of worklife legislation.Such legislation could give guidelines on therights to health, safety, privacy, constitutionalprotections, or information that employees canexpect to enjoy in the workplace. As indicatedearlier in this chapter, the erosion of the doc-trine of “employment-at-will” through anti-discrimination, health and safety legislation,and public interest concerns, has alreadymarked some involvement of the U.S. Govern-ment in regulating the work environment. Theissue of electronic monitoring in offices is toonarrow to serve as a basis for comprehensivework environment legislation. It should be justone factor of many to be considered in deter-mining what rights U.S. citizens have in theworkplace, both as employers and employees.

However, assuming that blanket legislationon worklife quality is neither wise nor desira-ble, Congress might address concerns over spe-cific issues through the use of specific amen-datory legislation. If, for example, telephonecall accounting is an area of particular concern,Congress might address the problem specifi-cally by amending the Electronic Communi-cations Privacy Act to comport with what itconsiders “fair” monitoring practice. ThePresident’s Council on Integrity and Efficiencyguideline may form a template for such legis-lation, or instead, Congress may mandate alter-natives to telephone call accounting discussedin chapter 3 of this report.

Another example of an area of the law notcurrently addressed, and on which Congressmay wish to act, is what might be called trans-actional privacy, or the collection of “informa-tion about information. ” For example, thenumber of keystrokes, the number of visits tothe bathroom, the destination of calls, etc., areall type of information about transactions,rather than about the content of communica-tions or activities (see part II). 109 A l though

‘WI’ransactiona) information, it will be recalled, differs fromsubstantive information, in that the latter reveals the contentor meaning of communications or documents. Transactional in-formation, in contrast, reveals facts about communications ordocuments.

present law, such as the Privacy Act and theFair Credit Reporting Act, regulates what canbe done with transactional information oncecollected, it does not forbid its collection assuch. As we have seen, however, the collectionof transactional information, particularly ifdone on an intensive basis (see part II) canarouse feelings of having one’s privacy, dig-nity, and autonomy invaded. Moreover, be-cause of the power of computers to generateprofiles and crosshatch many transactions,transactional information can yield informedestimates of the substantive content of com-munications or patterns of behavior—it can be,in other words, a “back door” for getting atpersonal information that existing law reg-ulates.

Certainly, to forbid or regulate the collectionof all transactional information would be un-reasonable. Much transactional data collectedby electronic monitoring software is used tomonitor equipment utilization, to track totalsof transactions made, and to determine whethersecurity systems are working properly. The col-lection of transactional data becomes mostsubject to controversy when it is collectedabout the performance of an individual worker.It maybe that Congress would choose to treatelectronic monitoring as a‘ ‘right to know’ is-sue for workers; that is, employers could havethe right to collect whatever kind of transac-tional data they wish about employee perform-ance, but would be required to give employeesaccess to, and if need be, correct, this infor-mation.

As this report has indicated throughout,however, the issue of work monitoring cannotbe adequately understood, nor appropriatelyaddressed, in isolation from larger labor-man-agement, privacy, and the health and safetycontext in which it is embedded. Nor will spe-cific policy actions taken with respect to par-ticular forms of monitoring necessarily end thecontroversies arising out of the application ofnew technology forms in the workplace. Thepolicy maker should therefore be aware that anexclusive focus on the forms of monitoring con-sidered in this report will at best form the ba-sis for a series of patchwork solutions to whathas been a perennial issue between workers andemployers.

chapter electronic work monitoring law and

Documents