WHEN you’re sitting behind the walls of a cubicle or making deliveries in a company car you might be working in solitude, but chances are you’re not alone.
Do you write e-mails at work? Odds are high your employer is monitoring them. Surf the Web? They may be keeping tabs on what sites you visit. Out in the field making service calls? If you’ve got a company cellphone, your boss can use GPS to track your every move – and a growing number do. Even in a bathroom or a locker room you might be subject to scrutiny, via hidden cameras.
In short, in the digital era, your employer has more ways than ever to keep tabs on what you’re doing every moment of the workday. And for that matter, it doesn’t always end at the close of the business day.
Call it the era of the overwatched worker, or Big Boss meets Big Brother – either way, it amounts to busy times for Lewis Maltby, the president of the National Workrights Institute, in Princeton, N.J. As the country’s leading advocate for workplace privacy rights, Maltby, 59, spends his days watching the watchers. Along with NWI legal director Jeremy Gruber, he writes reports, gives lectures, offers legal consultation, speaks to the media and lobbies legislators, all in the name of keeping the boss out of your personal business.
A Pennsylvania native with a B.A. and a law degree from the University of Pennsylvania, Maltby started his career as a public defender in Philadelphia. The stress of that job led him to the private sector, as the in-house counsel for a small high-tech company, where he eventually was promoted to executive VP. In that role, he had the company’s human resources department reporting to him, which raised some issues for the longtime civil libertarian, a member of the board of the state American Civil Liberties Union.
“I didn’t believe in a great deal of standard employment practices,” he says – drug testing, for example, or the so-called “employment at will” doctrine that in the U.S. allows a boss to fire an employer at any time for any reason, as long discrimination isn’t a factor. As a result, “I had to think about HR policies I considered ethical that would work in the real world.”
His efforts drew the interest of ACLU, which asked Maltby to be its spokesman on employment issues. When it opened its first employment rights office in 1990, he became its director; seven years ago, that spun off into the independent NWI, which today has a staff of three, including an office manager in addition to Maltby and Gruber.
Maltby, a father of three, works out of a sparsely decorated office in a low-rise development a couple of miles outside of town. That’s where @work visited with him on a recent Monday afternoon, to talk about how technology has put “privacy under siege,” as the title of a recent NWI report put it, as well as how what you do in your off hours can get you fired, and how American workers have fewer rights than they often realize.
If privacy is under siege in the workplace, how have we gotten there? What are the forces creating that situation?
I don’t mean to be flip, but there’s that old joke about why do male dogs do what they do – because they can. Why do employers micro-monitor employees? Because they can. It used to be difficult and expensive, and now the technology is easy and cheap. For example, if you wanted to install a hidden camera in a locker room 20 years ago, it would cost thousands of dollars. Today you can buy the camera for $49.95 and install it yourself for nothing. So that’s the biggest thing that’s changed.
There are other things that have happened. Twenty years ago, sexual harassment liability wasn’t the risk for employers that it is today, so even if employers didn’t want to monitor e-mail at all, they would have some reason to, because there might be harassment going on they might be responsible for. That’s one of the most common reasons employers give for monitoring, especially e-mail. And there’s probably some truth to it.
You say “some truth.” Is it also a convenient rationale?
Yes, it has to be, because if all they wanted to do was protect against sexual harassment, employers wouldn’t have to monitor as extensively as they do.
Is it accurate to say that the average worker is, I don’t want to say unaware, but not fully aware?
That’s exactly what it is. Most people today know that there’s some monitoring going on in their workplace. But people make very naive assumptions about the way it works.
Take e-mail, for example. Everyone knows that if you’re on vacation and the boss needs to see an e-mail you sent to an important customer, they’re going to look at the e-mail, or that if you’ve been accused of sexual harassment, the boss will probably look at your e-mail to see if there’s anything going on. But people think that the boss always looks at the e-mail when there’s a reason, and that’s where they’re wrong.
Where do you encounter abuses?
Well, one thing people never think about is the employees in IT. Here’s a guy who’s essentially sitting in a closed room with everyone else’s diary, and no one will ever know if he reads it. What would you do? Especially if you were a young man and there was an attractive young woman who just moved into a cubicle down the hall, and you were interested in asking her out?
There’s no law governing this, so is it a matter of company policy whether he’s free to do that?
Yes, and as a matter of company policy, he is. The Bentley Center for Business Ethics did a survey, and one of the things they asked employers was, do you have a policy telling people in IT not to monitor e-mail for personal amusement, and a quarter of the employers didn’t even have a policy on paper. So it was official company policy that you could do it. And the other three-quarters of the companies had no enforcement mechanism at all.
What kinds of concrete issues have come up as a result of that?
It can get you fired. Which usually happens because you say something and it makes your boss mad. There’s a relatively famous case in our world about a guy named Smyth who worked for Pillsbury Baking Co. in Philadelphia. This guy was all exercised about his boss one day, and he sent a scathing e-mail to a co-worker, and the boss read it. He didn’t like being called, I think it was, a “back-stabbing bastard,” so he fired him. And that happens fairly frequently.
The other thing that can get you fired is dirty jokes. Several companies, including Xerox and the New York Times, have had major terminations because they didn’t like somebody’s e-mail.
What percentage of companies monitor their employees’ Internet use?
It’s probably close to 100 percent for major companies. But not every company monitors everything.
Do you take issue with that?
They want to know what employees are looking at on company time. The Internet is undoubtedly the biggest time waster ever invented, so you can’t blame employers for being concerned. But they’re going about it the wrong way. They let you go essentially anywhere you want on the Internet, with the possible exception of some X-rated sites, and then the employer gets a list of every site you’ve visited, which can be extremely intrusive. Because people don’t go to Dear Abby anymore when they’ve got personal problems, they go to the Internet. You have a domestic abuse problem, you’ve just found out you’re HIV positive, your kid has a drug problem, you’re going to go to the Internet. So now your boss knows stuff you haven’t even told your husband about.
What’s the answer to that?
Good Internet access software. You can get software today custom-tailored to implement any Internet access policy you can write. The employer can write a policy that says, for example, X-rated sites, never; nonwork-related but benign sites, like travel and sports and the stock market, before 9, after 6 and between 12 and 1, but that’s it. So you prevent them from wasting too much time, and you don’t need to know exactly where they went, so the privacy issue disappears.
Monitoring workers with GPS-equipped cellphones seems to be a growing issue.
It’s going to be a very big problem. It’s not yet, but it’s going to be. All cellphones are GPS-equipped today, and so many employers are giving out company cellphones today, you’ve got half the equation covered at zero cost. Now all you have to do is find the receiver and the software, and it’s not that expensive.
So what’s probably going to happen is, picture a driver for FedEx who’s driving through downtown Manhattan in the middle of August. He pulls over for five minutes to get an iced tea, and before he gets his foot on the asphalt, he hears his boss’ voice saying, “Get your ass back in that truck.”
Isn’t that far-fetched?
I don’t think so. If you look at the way people are managed in the workplace, we really are seeing the emergence of the sweatshop. If you’re working at a computer, chances are your boss is counting every single keystroke, and if you don’t produce enough keystrokes in the course of a day, you’re in trouble. And if you’re working in telemarketing, your boss knows exactly how many calls you make, and if you don’t handle the requisite number of calls, you’re in trouble. If you’re going to do that, why wouldn’t you tell a driver he’s got to make a certain number of pickups a day, and then make sure he does it by jumping on his back every time he tries to stop to go to the bathroom? It’s the same management style.
With GPS, the potential is there not only to watch someone from 9 to 5, but after work, as well. Do you think that will become an issue?
It’s already started. We’ve had two cases already.
Do you see cases where things people do in their off hours have cause problems at work?
Occasionally. There was a woman who was fired in Alabama during the last presidential election. She came into the company parking lot with a Kerry bumper sticker on her car, and when she wouldn’t take it off, her boss fired her. And there was a guy in West Virginia who went to an event around the same time, and he called out a somewhat embarrassing question to the candidate; his boss was in the audience, and he liked the candidate, so he got fired. And it’s usually legal. New York is one of the few states with a law that says your boss can’t fire you for off-duty political behavior.
Federal law gives workers a certain number of protections – against gender discrimination, for instance, or sexual orientation –
What people have is protection against discrimination of almost any sort. Race, religion, national origin, disability, gender – we’ve just about got it covered. But if your boss is not discriminating, he can do virtually anything to you – and you’ve got no protection at all. He can fire you because he doesn’t like your politics, he can fire you for drinking in your own home, he can fire you because you took your clothes off on the Internet. No other country allows that but us. Every other industrial democracy requires a company to have some legitimate reason to fire you.
And people are shocked when they find this out. They’re so confident that they have the right to freedom of speech at all times, when you tell them they have no rights when they walk in the office door they don’t believe you.
What’s wrong with the notion that if someone is going to sign your paycheck, that they get to make the rules?
That’s probably the key question I get asked, and there is a point to it. It’s the employer’s business – in a market economy they ought to able to make the rules. But everything should have limits, and the limit ought to be that employers can decide who to hire or fire based on anything they even think is job related. But if it’s not job related and even the employer knows it’s not, then they shouldn’t be making hiring decisions based on that.
The other thing is that when it comes to basic human rights, like freedom of speech, those should not be negotiable. We’re all American citizens, and you shouldn’t lose those rights when you go in the office door in the morning.
The thing about employers is, they always say, we believe in privacy, we don’t try to spy on people. And it’s actually true. There are very few voyeuristic employers in the world, but when they’re doing something for legitimate business purposes that invades your privacy, they won’t spend a nickel to minimize the impact. And it’s because the employees don’t say anything. Your boss doesn’t want to read your personal e-mail. It’s just easier to read it than it is to figure out a way to get it out of the monitoring system. If he thought people cared, he’d make the effort. But the silence is deafening.
* Number of companies that monitor employees’ e-mail: 92 percent
* Number that say they “only do it for a good reason”: 34 percent
* Number of companies who monitor employees’ Web use: 76 percent
* Number of companies that store and review employees’ computer files: 50 percent
* Number that tape phone conversations of some or all employees: 22 percent
* Number that review voicemail messages of some or all employees: 15 percent
* Number of companies that use video surveillance: 51 percent
* Number of companies that track workers with GPS: 5 percent.
Sources: Bentley College Center for Business Ethics; American Marketing Association