ASSINGNMENT

OF
INDUSTRIAL RELATIONS
ON
WORKPLACE SURVIELLANCE
INTRODUCTION

The most common form of workplace surveillance is email and internet monitoring The increasing
range, capabilities and cost effectiveness of surveillance software makes it easy for employers to
track personal use of the internet on work computers. In other words, with technology becoming
increasingly sophisticated and accessible more technology-neutral legislation is needed in order to
capture any further technological advances in this area.
THE surveys conducted over the course of 4 years has given the fact that on an average, it is
estimated that 30-40 percent of employees' internet usage is not work related, and result in loss of
productivity.

Improper internet usage: The employers have some justifiable reasons for monitoring their
employees’ internet usage like preventing cyber stalking by employees and preventing employees
from downloading software illegally, etc. Moreover, downloading pirated music or movies onto a
work computer can lead to a copyright-infringement suit. Similarly, viewing pornographic video
clips or sending off-color emails can lead to sexual harassment claims.

Data Security: In an attempt to prevent confidential data from being passed on to rivals through
internet and prevent employee disclosure of trade secrets, employers keep a tab on outgoing the
mails of employees.

The employers can indulge into several types of monitoring like follows:

Performance tracking: Here, the employer can take screenshots to know what his employees are
doing, how much time they dedicate to work, and how productive they actually are.

Computer searches: Computers provided by employer are personal but not private. So employees
should not expect privacy in computers. Employers have full right to access information stored on
them.

Monitoring calls: Employers can monitor calls of employees to ensure quality. Moreover,
employees use official phone lines for personal calls. To keep a check on that, employers can
monitor calls.

Monitoring mails: For preventing employees from indulging into offensive writings, spreading
rumors and the like employers have a legitimate business interest to review e-mails.

Some Common Offences:

Some of the most prevalent instances of misuse are:
• Sending messages with an intention to harass/malign, or exchanging potentially offensive
messages;
• Online chatting and instant messaging;
• Shopping and gambling online;
• Surfing pornographic sites;
• Unproductive downloads;
• Disclosing customer-sensitive information; breach of confidentiality
• Browsing social networking sites like Facebook, Orkut, etc.
Is it legal?
It is necessary for an organization to know what its employees are doing. It is especially important
to know what they are using the company’s resources for. While there are plenty of software
available in the markets to track what is happening on each of the networked computers, there is
one question that needs to be answered before making use of it. Is monitoring an employee legal?
The answer to this question lies in the legal aspects of monitoring. In some cases it is legal, while in
other cases, using monitoring software to view what employees are doing on the job can be illegal.
In India, as yet, no legislation specifically addresses e-mail privacy and electronic monitoring
activities. Moreover, it depends on the policy of the company which should clearly specify the
apparent offences and the penalties for the same. Moreover the intentions behind monitoring
employees should be right. Employee surveillance should be done to track reliability, use of time,
and efficiency of employees.

Conclusion:
A line is to be drawn on what is considered private for an employee and what is private for the
organization, that is, what are those matters that are considered a part of organizational information
that an employee has to skip. When too much sneaking is done, employees lose faith in the
employer resulting in lesser commitment towards the organization. Employees feel alienated and
thus are motivated to leave the company. To ensure healthy practices at workplace, companies
should establish clear policies on workplace privacy, and clearly define what privacy means to the
organization based on culture, business needs, and operations. It should be communicated properly
what will be monitored and what will not. And lastly, a balance should be maintained between
surveillance and employee privacy.

CRITICAL EVALUATION
Like most welfare schemes the concept of workplace surveillance is not written down in law. The
concept of privacy means not much to Indian Firms. But as more and more MNCs come into the
country, such concepts are becoming more and more prevalent.

REFERENCES
• Workplace Fairness "Surveillance at Work" http://www.workplacefairness.org/surveillance
• National Workrights Institute “Video Voyeurism: Employer Video Monitoring of
Bathrooms and Locker Rooms”
http://www.workrights.org/issue_electronic/em_videomonitoring.html
• National Labor Relations Board Advice Memorandum RE: ABC, Case 31-CA-22493
http://www.nlrb.gov/shared_files/Advice%20Memos/1997/p051297_abc.html
EXAMPLE
The following is a worksheet that was found during the course of research for this assignment.

Fact Sheet 7: Workplace Privacy and Employee Monitoring

1. Introduction
2. Telephone Monitoring
• Can my employer listen to my phone calls at work?
• If I wear a headset, are my conversations with co-workers subject to monitoring?
• Can my employer obtain a record of my phone calls?
3. Computer Monitoring
• Is my employer allowed to see what is on my terminal while I am working?
• How can I tell if I am being monitored at my terminal?
4. Electronic Mail and Voice Mail
• Is electronic mail private? What about voice mail?
• When I delete messages from my terminal, are they still in the system?
• My employer's electronic mail system has an option for marking messages as
"private." Are those messages protected?
• Is there ever a circumstance in which my messages are private?
• Are my text messages on an employer-provided cell phone private?
5. Video Monitoring
• Can employers use video monitoring in the workplace?
• Are there situations where an employer cannot use video cameras?
• What about video cameras that include audio surveillance?
6. Workplace Privacy Protections
• What about my employer's promises regarding e-mail and other workplace privacy
issues. Are they legally binding?
• Are there any laws that deal with workplace privacy?
• Are there organizations that assist employees regarding workplace privacy?
7. Resources
1. Introduction
Employers want to be sure their employees are doing a good job, but employees don't want their
every sneeze or trip to the water cooler logged. That's the essential conflict of workplace
monitoring.
New technologies make it possible for employers to monitor many aspects of their employees' jobs,
especially on telephones, computer terminals, through electronic and voice mail, and when
employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless
company policy specifically states otherwise (and even this is not assured), your employer may
listen, watch and read most of your workplace communications.
One company offers technology that claims to provide insight into individual employee behavior
based on the trail of "digital footprints" created each day in the workplace. This behavioral
modeling technology can piece together all of these electronic records to provide behavior patterns
that employers may utilize to evaluate employee performance and conduct. For example, it might
look for word patterns, changes in language or style, and communication patterns between
individuals.
Recent surveys have found that a majority of employers monitor their employees. They are
motivated by concern over litigation and the increasing role that electronic evidence plays in
lawsuits and government agency investigations.

A 2005 survey by the American Management Association found that three-fourths of employers
monitor their employees' web site visits in order to prevent inappropriate surfing. And 65% use
software to block connections to web sites deemed off limits for employees. About a third track
keystrokes and time spent at the keyboard. Just over half of employers review and retain electronic
mail messages.

Over 80% of employers disclose their monitoring practices to employees. And most employers have
established policies governing Internet use, including e-mail use (84%) and personal Internet use
(81%). For additional findings from the AMA's 2005 survey, visit
www.amanet.org/press/amanews/ems05.htm.
2. Telephone Monitoring
Can my employer listen to my phone calls at work?
In most instances, yes. For example, employers may monitor calls with clients or customers for
reasons of quality control. However, when the parties to the call are all in California, state law
requires that they be informed that the conversation is recorded or monitored by either putting a
beep tone on the line or playing a recorded message. (California Public Utilities Commission
General Order 107-B, www.cpuc.ca.gov/Published/Graphics/567.pdf) Not every business is aware
of this requirement, so your calls might still be monitored without a warning. Federal law, which
regulates phone calls with persons outside the state, does allow unannounced monitoring for
business-related calls. (See Electronic Communications Privacy Act, 18 USC 2510, et. seq.,
www.law.cornell.edu/uscode .)An important exception is made for personal calls. Under federal
case law, when an employer realizes the call is personal, he or she must immediately stop
monitoring the call. (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However,
when employees are told not to make personal calls from specified business phones, the employee
then takes the risk that calls on those phones may be monitored.
Privacy Tip: The best way to ensure the privacy of your personal calls made at work is to use your
own mobile phone, a pay phone, or a separate phone designated by your employer for personal
calls.
If I wear a headset, are my conversations with co-workers subject to monitoring?
Yes. The conversations you have with co-workers are subject to monitoring by your employer in the
same way that your conversations with clients or customers are. If you wear a headset, you should
use the same care you would if you were talking to a customer or client on the phone. Some
headsets have "mute" buttons which allow you to turn off the transmitter when you are not using the
telephone.
Can my employer obtain a record of my phone calls?
Yes. Telephone numbers dialed from phone extensions can be recorded by a device called a pen
register. It allows the employer to see a list of phone numbers dialed by your extension and the
length of each call. This information may be used to evaluate the amount of time spent by
employees with clients.
Employers often use pen registers to monitor employees with jobs in which telephones are used
extensively. Frequently, employees are concerned that the information gathered from the pen
register is unfairly used to evaluate their efficiency with clients without consideration of the quality
of service.
 3. Computer Monitoring
If you have a computer terminal at your job, it may be your employer's window into your
workspace. There are several types of computer monitoring.
a. Employers can use computer software that enables them to see what is on the screen or
stored in the employees' computer terminals and hard disks. Employers can monitor Internet
usage such as web-surfing and electronic mail.

People involved in intensive word-processing and data entry jobs may be subject to
keystroke monitoring. Such systems tells the manager how many keystrokes per hour each
employee is performing. It also may inform employees if they are above or below the
standard number of keystrokes expected. Keystroke monitoring has been linked with health
problems including stress disabilities and physical problems like carpal tunnel syndrome.
b. Another computer monitoring technique allows employers to keep track of the amount of
time an employee spends away from the computer or idle time at the terminal.
Is my employer allowed to see what is on my terminal while I am working?
Generally, yes. Since the employer owns the computer network and the terminals, he or she is free
to use them to monitor employees.Employees are given some protection from computer and other
forms of electronic monitoring under certain circumstances. Union contracts, for example, may
limit the employer's right to monitor. Also, public sector employees may have some minimal rights
under the United States Constitution, in particular the Fourth Amendment which safeguards against
unreasonable search and seizure.
There may be some additional rights for employees in California given specific statutes of that state.
See the paper by Los Angeles attorneys John Caragozian and Donald Warner, Jr., titled "Privacy
Rights of Employees Using Workplace Computers in California," published in 2000.
How can I tell if I am being monitored at my terminal?
Most computer monitoring equipment allows employers to monitor without the employees'
knowledge. However, some employers do notify employees that monitoring takes place. This
information may be communicated in memos, employee handbooks, union contracts, at meetings or
on a sticker attached to the computer.
In most cases, employees find out about computer monitoring during a performance evaluation
when the information collected is used to evaluate the employee's work.
4. Electronic Mail and Voice Mail
Is electronic mail private? What about voice mail?

In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it
and is allowed to review its contents. Messages sent within the company as well as those that are
sent from your terminal to another company or from another company to you can be subject to
monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail
as well as instant messages. The same holds true for voice mail systems. In general, employees
should not assume that these activities are not being monitored and are private. Several workplace
privacy court cases have been decided in the employer's favor. See for example:
• Bourke v. Nissan, www.loundy.com/CASES/Bourke_v_Nissan.html
• Smyth v. Pillsbury, www.loundy.com/CASES/Smyth_v_Pillsbury.html
• Shoars v. Epson, http://fac-staff.seattleu.edu/mchon/web/Cases/shoars.html
When I delete messages from my terminal, are they still in the system?
Yes. Electronic and voice mail systems retain messages in memory even after they have been
deleted. Although it appears they are erased, they are often permanently "backed up" on magnetic
tape, along with other important data from the computer system.
My employer's electronic mail system has an option for marking messages as "private." Are
those messages protected?
In most cases, no. Many electronic mail systems have this option, but it does not guarantee your
messages are kept confidential. An exception is when an employer's written electronic mail policy
states that messages marked "private" are kept confidential. Even in this situation, however, there
may be exceptions. (See Smyth v. Pillsbury.)
Is there ever a circumstance in which my messages are private?
Some employers use encryption to protect the privacy of their employees' electronic mail.
Encryption involves scrambling the message at the sender's terminal, then unscrambling the
message at the terminal of the receiver. This ensures the message is read only by the sender and his
or her intended recipient. While this system prevents co-workers and industrial "spies" from reading
your electronic mail, your employer may still have access to the unscrambled messages.

Are my text messages on an employer-provided cell phone private?

In an opinion issued on June 18, 2008, the 9th U.S. Circuit Court of Appeals ruled that employers
must have either a warrant or the employee's permission to see cell phone text messages that are not
stored by the employer or by someone the employer pays for storage. While e-mail typically is
stored on a company's own servers, text messages usually are stored by cell phone companies and
the employer does not directly pay for their storage. That distinction formed the basis for the court’s
decision. (Quon v. Arch Wireless, et al. 529 Fed3d ((9th Cir 2008). Petition for rehearing en banc
denied January 27, 2009, http://www.ca9.uscourts.gov/datastore/opinions/2009/02/06/0755282o.pdf
5. Video Monitoring

Can employers use video monitoring in the workplace?

For the most part, yes. Video monitoring is a commonplace method of deterring theft, maintaining
security and monitoring employees. For example, a bank may utilize video monitoring to prevent
or collect evidence on a robbery. A company may also use video monitoring in a parking garage as a
security measure for employee safety.
Employers may also use cameras to monitor employee productivity and prevent internal theft.
Currently, federal law does not prevent video monitoring even when the employee does not know or
consent to being monitored.
Are there situations where an employer cannot use video cameras?
In some instances, courts have upheld employee privacy. Specifically, courts have sided with
employee privacy in instances where the monitoring has been physically invasive, such as hidden
cameras in a locker room or bathroom. See National Workrights Institute’s Electronic Monitoring
in the Workplace: Common Law & Federal Statutory Protection for a more in-depth discussion.
There are some state laws (such as Connecticut’s Gen Stat 31-48b) that have restrictions on where,
how and why an employer may videotape employees.
Labor unions may negotiate limitations on video recordings of unionized workers. In 1997, the
National Labor Relations Board ruled that surveillance was subject to mandatory bargaining,
meaning a union must agree to any monitoring of unionized workers. This includes the use of
hidden cameras. Read the National Labor Relations Board Advice Memorandum on this case.
Union members should speak with a union representative if they have concerns about workplace
video monitoring.
What about video cameras that include audio surveillance?
Video cameras that also capture audio recordings may be subject to laws relating to audio recording,
including wiretap and eavesdropping laws.
Federal law does not prohibit audio recording of phone conversations as long as one party on the
call consents to recording. Most states have extended this law to include recording in-person
conversations. Twelve states have laws that require that all parties in a conversation consent to
audio recording. For a state-specific guideline of laws regarding audio recording, visit Can We
Tape? A Practical Guide to Taping Phone Calls and In-Person Conversation in the 50 States and
D.C. (The Reporters Committee for Freedom of the Press).
6. Workplace Privacy Protections
What about my employer's promises regarding e-mail and other workplace privacy issues.
Are they legally binding?
Not necessarily. Usually, when an employer states a policy regarding any issue in the workplace,
including privacy issues, that policy is legally binding. Policies can be communicated in various
ways: through employee handbooks, via memos, and in union contracts. For example, if an
employer explicitly states that employees will be notified when telephone monitoring takes place,
the employer generally must honor that policy. There are usually exceptions for investigations of
wrong-doing. If you are not already aware of your employer's workplace privacy policies, it is a
good idea to become informed.
In Smyth v. Pillsbury, the employee's termination was upheld by the court, even though the
company had a policy of allowing e-mail use for personal communications. In this case, the
employee had sent messages to co-workers that were deemed highly inappropriate for workplace
communications. (Smyth v. Pillsbury, C.A. NO. 95-5712, U.S. District Court for the Eastern District
of Pennsylvania, Jan.18, 1996, Decided, Jan. 23, 1996, Filed.
www.Loundy.com/CASES/Smyth_v_Pillsbury.html )
Are there any laws that deal with workplace privacy?
Currently there are very few laws regulating employee monitoring. If you are concerned about this
issue, contact your federal legislators, especially the members of the House and Senate Labor
committees in Congress. (See PRC Fact Sheet 18 "Privacy in Cyberspace,"
www.privacyrights.org/fs/fs18-cyb.htm.)

Are there organizations that assist employees regarding workplace privacy?

Yes. There are several groups that are actively involved in workplace monitoring issues and that
advocate stronger government regulation of employee monitoring activities.
• National Work Rights Institute
166 Wall St.
Princeton, NJ 08540
(609) 683-0313
Web: www.workrights.org
• 9 to 5, the National Association of Working Women
207 East Buffalo St., #211
Milwaukee, WI 53202
(414) 274-0925
Hotline (800) 522-0925
Web: www.9to5.org
• Workplace Fairness
www.workplacefairness.org
Affiliated with the National Employment Lawyers Association, www.nela.org
 • American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004-2400
(212) 549-2500
Publications Ordering: 1-800-775-ACLU (2258)
Web: www.aclu.org
The American Civil Liberties Union (ACLU) also has information related to workplace privacy
issues that are not discussed in this fact sheet. Some of the issues of growing concern involve
psychological testing, drug testing, polygraph or lie-detector testing and off-the-job surveillance of
employees. Visit the ACLU's Web site at www.aclu.org.
Labor groups are taking a stronger interest in workplace monitoring. If your union represents
employees' interests regarding workplace monitoring, please contact the Privacy Rights
Clearinghouse so we can include information in this publication. Contact Us:
http://www.privacyrights.org/about_us.htm#contact