AFFIRMATIVE – EMPLOYMENT – WORKPLACE SPYING 287

AFFIRMATIVE — EMPLOYMENT — WORKPLACE SPYING 287

SOLVENCY

NEW LAWS WOULD BALANCE THE EMPLOYER-EMPLOYEE RELATIONSHIP

Rod Dixon, an attorney at the U.S. Department of Education, "With Nowhere to Hide: Workers are Scrambling for Privacy in the Digital Age," Journal of Technology Law and Policy, Spring 1999, 4 J. Tech. L. & Pol'y 1, EE2001-JGM, P.5

At first glance, this proposed enhancement of privacy doctrine may seem extraordinarily disadvantageous to employers. Yet, it is not. Instead, this proposal tips the balance more evenly between employee and employer. Noteworthily, relevant case law has permitted the termination of employees by employers who have determined that an employee surreptitiously used surveillance technology against his employer. n11

WORKPLACES SHOULD HAVE STRICT LEGAL LIMITATIONS ON THEIR ABILITY TO SURVEILLANCE EMPLOYEES

Surreptitious and sweeping surveillance of the workplace through the use of digital technologies should be presumptively unwarranted under the law of privacy. n10 As such, employers could only use such technology when particularized suspicion of harmful or unlawful conduct of an employee could be articulated or when the presumption could be rebutted by evidence of exigent circumstances. And, in no case, should an entire workplace be subject to widespread surreptitious surveillance. Surreptitious workplace surveillance, when such use is warranted, should be limited to the area of the workplace for which particularized suspicion has been articulated.

WORKPLACE MONITORING GOES OVERBOARD AND RUNS RAMPANT -- FAR BEYOND WHAT IS NEEDED

Liz Stevens, KNIGHT RIDDER NEWS SERVICE Staff writer, The San Diego Union-Tribune, October 6, 1999, SECTION: NEWS Pg. A-1 TITLE: Careful! Your boss may be eavesdropping; Two-thirds of U.S. businesses spy on employees, study finds // acs-EE2001

The biggest problem with monitoring is that it "can go overboard," says Beth Givens, director of the Privacy Rights Clearinghouse in San Diego. " There are virtually no laws to protect employees from the excesses of monitoring."

Givens and other critics of workplace monitoring say abuses of power run rampant, from employers videotaping workers in lavatories and locker rooms to businesses that hire investigators to follow workers home.

HEALTH JUSTIFICATION FOR EMPLOYER INFORMATION IS A SLIPPERY SLOPE TO THE LOSS OF ALL PRIVACY

Greg Dawson; The San Diego Union-Tribune, March 27, 2000, SECTION: BUSINESS;Pg. C-1 TITLE: Freedom of speech shares workplace with the freedom to be fired; it's a ... Constitutional Catch-22 // acs-VT2001

"I think people have to realize there are certain things they do off the job that employers want to inquire into," Smith says. "Employees have come to accept more intrusions as part of the job."

Employers "are legitimately concerned with the escalating cost of health care," Maltby says. "I've seen employers who would never dream of holding anyone's sexual orientation against them talk seriously about not hiring gay men because of the cost of HIV treatment."

Maltby sees in this a dangerously slippery slope.

"Everything we do in our private life has an impact on our health, more often negative," he says. "If employers persist in regulating behavior that affects health, eventually we won't have any private life left. Our kids will be able to find it in the museum next to the dinosaurs."