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ASIS speaks out on electronic monitoring.

On February 10, 1992, ASIS sent the following statement on the proposed Privacy for Consumers and Workers Act to each member of the US House of Representatives and the US Senate. Statements were also delivered to the President of the United States, the White House press office, the US Chamber of Commerce, and various professional and trade associations that have testified against the bill.

Each statements was accompanied by a personalized letter from ASIS Executive Vice President E.J. Criscuoli, Jr., CPP. In his letter, Criscuoli said the statements "marks one of the few times in our history that [ASIS] has taken such strong exception to legislation....We strongly urge you to reconsider its passage."

The full text of the ASIS statement follows.

THE AMERICAN SOCIETY FOR Industrial Security (ASIS) is a professional organization with more than 25,000 members and 150 chapters in the United States. The ASIS membership is drawn from every major organization in the nation and is responsible for safeguarding more than $1 trillion in assets. The industrial security sector itself constitutes a $40 billion annual business; it is one of our nation's fastest growing industries, the envy of foreign competitors.

This statement represents not only the views of the ASIS membership but also those of the more than 1 million private security employees in this country. The consensus among security professionals appears to be that the Privacy for Consumers and Workers Act is not necessary. We believe current federal and state laws suffice to safeguard US workers against any employer abuses related to electronic monitoring.

The current effort to federalize the law monitoring, we believe, will seriously hamper efforts by both private and public employers to enhance the productivity of the work force as well as safeguard its health, safety, and security. A similar law, the Employee Polygraph Protection Act of 1988, has dissuaded employers from using the polygraph even where it plays a crucial role. Monitoring comprises an array of technologies, and the proposed legislation would have a chilling effect on their use.

TO DATE, NO ONE HAS SERIOUSLY challenged the value of electronic monitoring as management tool. Even its critics concede that, when properly employed, it can be a constructive vehicle. Its drawbacks--and we believe they are minor--are far outweighed by the benefits employers derive from its proper use.

We at ASIS believe the real debate over electronic monitoring centers on federalism. We fear that the proposed legislation constitutes an additional step toward federal control over matters that traditionally have been the province of states. Federal intervention would also erode the long-established employment-at-will doctrine, the traditional foundation of the employer-employee relationship.

State and local governments have proven both willing and able to regulate the work-place. More than a dozen states are currently studying legislation on electronic monitoring. We believe they should be permitted to do so without interference from Washington. Dwindling federal fund and resources can better be employed to address more serious and pressing economic needs of our society.

The regulation of electronic monitoring does not rank high in the minds of the public. In short, it is an artificial issue prompted by the agenda of special interest groups.

THE CONSENSUS AMONG SECURITY professionals in this country appears to be that the majority of crimes against businesses involve--directly and indirectly--dishonest insiders. Annual losses to the private sectors from business crimes exceed $50 billion. The cost of these crimes is ultimately borne by the public in the form of higher prices for goods and services as well as higher taxes.

US businesses also pay a high price in the form of bankruptcies, shoddy products and services, the loss of markets to foreign competitors, and an erosion of public confidence in our free enterprise system.

Thus, employers have both a right and an obligation to safeguard the workplace from dishonest insiders. Monitoring has proven to be an effective tool toward that end.

But monitoring is more than merely a tool for measuring employee performance and productivity, as its detractors would have us believe. In industries such as retailing, it is crucial to a company's economic well-being. In regulated industries, monitoring helps ensure that companies comply with government-mandated health and security and guidelines in the workplace.

We at ASIS are fully aware that the right of an employer to secure the workplace is not absolute. Both federal and state laws mandate that the rights of employees must not be abused. Current antidiscrimination laws as well as judicial oversight have given workers an array of legal safeguards. States such as California have even incorporated the right to privacy into their constitutions.

Current law also limits the right of employers to hire and fire their employees without adequate basis. For example, in some states, employees have a right to access the date collected about them. The employers authority to dictate conditions of employment to their workers is also limited by an army of government regulators.

Today's workers have ample recourse through the courts to safeguard their rights and obtain redress for any infractions related to monitoring. We fail to see why the proposed legislation is needed.

After an extensive review of both the proposed legislation and the reasons given for it, we have concluded that, except for satisfying the needs of special-interest groups, the proposed legislation will only undermine the ability of employers to secure the workplace. Furthermore, given the current economic woes, employers could well do without another layer of federal regulation.

WHILE MONITORING FINDS ITSELF UNDER attack by a handful of vocal special-interest groups, it is currently employed in both the private and public sectors as an effective management tool. Little or no evidence exists of any serious abuses. Rather, monitoring has proven to be a valuable management tool whose function is not pry into the private affairs of workers but to enhance their performance, productivity, and security. Monitoring is an indispensable component of the modern business setting.

Consider the following review of monitoring as used by the private and public sectors.

Private Sector. To our knowledge, no reliable figures are available either on how extensively monitoring is used in the private sector or how extensively private employers use monitoring to make decisions on employee salaries, discharges, layoffs, and related matters.

A review of current literature confirms that such data exists. The information presented to Congress by critics of electronic monitoring is at best educated guesswork in the guise of academic study.

Studies supporting current antimonitoring legislation are merely self-serving diatribes designed to support political agendas that have little if anything to do with monitoring. They lend themselves to numerous interpretations, depending on the various financial and political needs of their authors.

Also, for every study critical of monitoring, at least an equal number support it. For example, a survey of 45 New York City corporations found that electronic monitoring is not as widespread as its critics would lead us to believe. Only eight of these corporations (18 percent) reported using information collected through monitoring as a basis for individual performance evaluations; six (13 percent) used it for work-group appraisals; and 14 (31 percent) used it solely for planning work force requirements. No evidence has been brought forth to show that monitoring deterred their workers from joining labor unions or from otherwise exercising their legal rights.

The majority of employees in the private sector are not being monitored, nor is there any evidence--save for a handful of orchestrated horror stories occasionally put forth by detractors--that monitoring has led to serious privacy abuses. Moreover, no concrete evidence suggests monitoring has an adverse effect on the work force. The abuses documented to date are negligible when compared to the overall work force population.

Public Sector. The monitoring practices of public employers differ little from those of their private counterparts. As with the private sector, no reliable data is available on how many public employees are monitored.

Monitoring in the public sector is used largely for planning and organizing and to evaluate work force productivity. As with the private sector, many public employers do not monitor their workers.

Examples of common applications of monitoring in the public sector include the following:

* Performance statistics are collected for data transcribes at the Department of Agriculture, with supervisors receiving periodic reports.

* The Department of Labor monitors the work of claims' examiners. The data includes the number of wage and loss claims processed as well as the elapsed time from the receipt of a claim to the rendering of a decision.

* The IRS employs about 2,300 contact representatives who speak with delinquent taxpayers by telephone, negotiate payment schedules, and update taxpayer files. Their supervisors often listen in on calls to monitor for representatives' courtesy and correctness in disseminating information.

As best we can ascertain, the number of workers monitored in the public sector is about the same as that in the private sector--fewer than 30 percent. Agencies that are often involved are those plagued by insider thefts or required to monitor by government-dictated regulations.

Public employers place the same value on monitoring as a management tool as do their private counterparts. The proposed legislation would deny them this tool.

AMERICAN EMPLOYERS ARE NOT THE only ones who make use of electronic monitoring. In Europe, Canada, and Asia, monitoring is recognized as playing a positive role in the workplace.

Like the United States, many of the countries that use monitoring are democracies and are sensitive to the privacy rights of their workers. But they are also cognizant of the occasional value of monitoring as a management and security vehicle. They recognize that a balance must be struck between the needs of employers and the privacy of workers.

The following is a description of monitoring practices in several countries throughout the world.

Canada. Electronic monitoring is not prohibited by any Canada's national or provincial labor codes, nor is any movement afoot to regulate monitoring at either the federal or provincial level. Monitoring decisions have been left largely to the collective bargaining process.

Monitoring is as pervasive in the Canadian workplace as it is in the United States and is employed largely for the same reasons. This is especially true in telephone monitoring examples. However, as in the United States, the telephone practices of only a minority of the Canadian work force are monitored.

Japan. The monitoring of workers is not as pervasive in Japan as it is in North America and Europe--largely because of Japanese cultural traditions. For a Japanese employer to resort to monitoring as a way to measure the productivity or honesty if workers constitutes a loss of face.

While the proliferation of automation and Western business practices in the Japanese workplace, however, cultural opposition is giving way to new management techniques. Some Japanese employers are realizing that monitoring constitutes a valuable management tool when properly employed.

Norway. Both labor and employer groups in Norway have come to recognize that monitoring can help improve the efficiency and productivity of the work force as well as constitute a useful management tool for planning and policy implementation. No current legislative efforts are in progress to alter the practice.

Sweden. The way employers use monitoring in Sweden is left largely to negotiations between employers and their workers. As in European countries, monitoring is used to gauge the performance and productivity of the work force as well as to deter thefts and related abuses by insiders.

Germany. As in other Western democracies, monitoring is left to the negotiating process between employers and their workers in Germany. Monitoring, when properly employed, is recognized as a valuable tool. While employer abuses do exist, people realize that no management tool is perfect.

Like their US counterparts, employers in other countries have come to realize that monitoring, while not devoid of abuses, is nevertheless a useful fixture in the modern workplace. When properly used, it can assist both employers and employees.

WE AT ASIS BELIEVE THAT THE PROPOSED legislation is neither necessary nor warranted by the circumstances at hand, and that it would impose unnecessary expenditures and additional red tape on US employers. Our review of existing federal and state law has convinced us that additional federal legislation would merely duplicate existing efforts and have a chilling effect on employers.

Furthermore, such legislation would have several disruptive effects. Consider the following examples:

The legislation would undermine existing law. Under traditional employment law, the relationship between employer and employee has been one of "employment at will." According to that doctrine, in the absence of a specific agreement to the contrary an employer has the right to discharge an employee for cause, while the employee has a correlative right to sue for wrongful discharge.

Although subject to exceptions carved out by a variety of judicial and statutory qualifications, employment at will is still the law in all 50 states. The proposed legislation would seriously erode it, expanding the authority of the federal bureaucracy into matters traditionally relegated to states and local governments.

The proposed legislation would also pose unnecessary financial burdens on US employers at a time when they face growing foreign competition as well as domestic economic woes.

Current efforts to police workplace will suffer. Under current law employers are not liable for practices that further their legitimate business interests--for example, enhancing the productivity and equality of their work force or safeguarding their property from theft or destruction.

Monitoring for the purpose of advancing the health, safety, and security of the US work force or evaluating the productivity of employees constitutes prudent management in today's competitive global environment. In some cases, it is even mandated by law.

For example, an employer can be held vicariously liable for the crimes of its employee based o the theory that it is responsible for the actions of its workers while they are acting in the scope of their employment. An employer can be cited for the acts of its employees in such regulated industries as pharmaceuticals, securities, and health care.

An employer can also be held liable for the poor quality of its products and services. Monitoring can help ensure that an employee complies with the mandate of the law. The proposed legislation would undermine employers' efforts--some mandated by law--to police the workplace.

Monitoring's legitimate management function would be lost. Electronic monitoring currently serves numerous legitimate business interests. For example, it can be used to allocate costs among various accounts within a business, ensure customers are well treated, and keep track of waste and fraud.

Monitoring also plays a role in ensuring that telephone communications between an employer's staff and the public are prompt and courteous. Even the federal Communications Privacy Act of 1986 recognizes the need for such monitoring by telecommunication carriers.

According to the General Accounting Office, an arm of the US Congress, as many as 33 percent of all long-distance telephone calls made on federal telephone systems are for personal reasons. The same holds true in the private sector. Monitoring helps deter such costly abuses.

The emphasis on the right to privacy would disrupt the employer-employee relationship. The employee's right to privacy is often raised when the issue of monitoring is discussed. But privacy is a broad term, representing concerns about autonomy, individuality, personal space, solitude, and intimacy. It encompasses much of the human experience.

While monitoring may evoke negative emotional reactions in some, that in itself is not sufficient to enact legislation that would disrupt the current relationship between employers and their employees.

More than 20 states now have laws that address the privacy of employees; a dozen others are considering extending those rights to employee monitoring. State and local governments have proven they are ready and willing to take steps to ensure the privacy of workers.

Existing law covering employee health concerns would be duplicate. Nearly all local jurisdictions recognize stress as a compensable injury, either under their tort or workers' compensation laws. However, stress is defined in a variety of ways, depending on how it is manifested as well as the manner and context in which it is inflicted. Standards of proof for its existence and the degree of injury necessary for compensation determine whether monitoring-induced stress (if it could be shown to exist) will rise to the level of a legally] recognized claim.

Workers' compensation, which has been established in all 50 states to provide compensation on a no-fault basis for the loss of ability to earn wages, is a substitute for employer tort liability. Most workers' compensation statutes require that the injury be accidental and that it arise out of or in the course of employment.

The courts have read those requirements expansively in recent years so that even accidents that are slow in manifestation and that the rise out of employment-related risk are compensable. Thus, chronic stress (even if the result of monitoring) could be compensable.

Finally, many states recognize the tort of international infliction of emotional distress. Although compensation for emotional distress previously required some sort of physical invasion or injury, such as battery or assault, that requirement is no longer the law in most jurisdictions. Monitoring-induced stress could be actionable under tort law, especially where the distress-producing act is of an "extreme and outrageous" nature.

We believe employees currently have adequate legal recourse for any stress-related problems connected to monitoring. Additional legislation would not prove productive.

A MORE VISIBLE IN WHICH electronic monitoring has come under attack by its detractors involves employees' health. Opponents of monitoring charge that a strong link exists between monitoring and the physical and psychological health of workers.

Detractors cite studies of workers who are said to have suffered fear, anxiety, and loss of self-esteem as a result of monitoring. Some even go so far as to link monitoring to employee absenteeism, poor productivity, and misconduct.

While we acknowledge that stress is an occupational health problem that costs US employers billions of dollars annually, we are not convinced that employee stress is the direct result of monitoring.

To link stress in the workplace to monitoring is not borne out by the evidence at hand. For example, stress-related workers' compensation claims by managers and supervisors are on the increase, yet few of those individuals are monitored.

How an employee will react to the demands imposed on him or her by the work environment depends on such factors as his or her experience, psychological and physiological state, and genetic predisposition.

While ample theoretical grounds may exist for postulating a link between monitoring and stress, none of the studies to date have isolated the effects of monitoring from the combined effects of all stress factors.

While some studies may have found a higher incidence of stress among workers who are monitored, that conclusion can be attributed as easily to numerous other work-related factors. Other studies have found a high incidence of stress-related ailments among workers who have experienced little or no monitoring.

For example, a study of 22,000 workers by the National Institute of Occupational Safety and Health found that secretaries had the second-highest incidence of stress-related illness, yet few of them were being monitored. The Framingham heart study found that female clerical workers develop coronary heart disease at nearly twice the rate of other workers.

Researchers have also found that the stress-provoking factors in those jobs are repetitive work and a lack of control over the environment; monitoring appears to have played no noticeable role.

Time constraints such as having to meet deadlines are another key factor in stress. Several studies have documented that the stress level rises dramatically as difficult deadlines draw near. In most cases, a fast-paced work environment, rather than monitoring, appears to be the crucial factor behind workplace stress.

A lack of participation in work-related activities has also been shown to increase stress, while a supervisory style characterized by constant negative performance feedback has been shown to be related to high levels of employee stress.

Linking stress to monitoring is both simplistic and not borne out by the evidence at hand. Available evidence raises more questions than provides answers. The causes of employee stress are many and varied; monitoring is merely one of them.

CRITICS OF monitoring also charge that it is disruptive and infringes on the privacy rights of workers. They cite several concerns, including the following:

Fear of being watched by others. Critics charge that monitoring creates a feeling among workers that they are being watched all the time. This feeling, they note, is quite different from having a human supervisor occasionally check the work of the employee while he or she is on the job.

According to the critics, employers compound the problem by using the information gathered through monitoring to alter the space and format of work--for example, to regulate the number of breaks their workers take.

We do not share this view. No convincing evidence shows that monitoring is more or less intrusive than a human supervisor. We believe the charge merely plays on human fears and biases.

Threats to employee health and confidence. Two other objections raised against monitoring deal with the health of employees and their confidence in their employers.

Since research on these two subjects is, at best, scant, we feel that until more convincing evidence is presented, guesswork alone is not sufficient to justify national legislation that will impose costly regulations on employers. An emotional reaction to monitoring should not be elevated to the stature of a scientific study.

Chilling effect. Opponents of monitoring charge that it has a chilling effect on efforts to unionize the US labor force. While efforts to unionize the work force have suffered recently, that failure cannot be attributed to monitoring. Profound social, political, and economic forces are responsible for the failures of the labor movement. These have already been amply documented, and we will not address them here.

The trend in the US workplace has been for greater employer-employee cooperation in decisions affecting the use of monitoring and how best to employ it. This trend can be found in both unionized and nonunionized workplaces. Many of the arguments against monitoring, when placed under close scrutiny, are based on emotional reactions to new technologies and are used to further other objectives.

CONTRARY TO WHAT its detractors charge, monitoring can (and does) play a crucial role in security. Employers who use monitoring--especially in such sensitive industries as retail, banking, securities, health care, and communications--find that it helps cut back on fraud, theft, and misuse of their money and resources by dishonest insiders.

To fully appreciate the cost of insider crimes, one should look at the annual losses connected to dishonest employees. The Handbook on White-Collar Crime, published by the US Chamber of Commerce, cites the following examples:

* Insider thefts exceed $2 billion. * Computer, telecommunications, and electronic fund transfer crimes exceed $1 billion.

* Financial fraud and manipulations--such as banking, securities, and insurance fraud--account for more than $5 billion.

* Pilferage and sabotage of employer equipment accounts for losses in excess of $3 billion.

* Theft of proprietary data exceeds $2 billion.

Employee theft accounts for some 30 percent of all annual business failures. It is a serious and growing problem, prompted by

* employee drug abuse;

* decline in the work ethic;

* economic woes;

* automation of the workplace, which makes it easier for dishonest employees to steal and evade detection; and

* an increasingly mobile work force.

Electronic monitoring can prove valuable in this context. For example, monitoring of warehouses, malls, parking facilities, and access points to a facility can help cut back on theft and physical attacks at that location.

Likewise, computer monitoring can help identify dishonest employees who access personnel, medical, and financial data. The proposed legislation could hamper security at the workplace. It would certainly make the tasks of security personnel more difficult.

There can be little doubt that the current workplace is undergoing rapid change. The traditional employer-employee relationship is in a state of flux. However, when properly applied, monitoring plays a legitimate and positive role.

While the American labor force has changed dramatically in recent decades, monitoring continues to be employed with scant evidence of any serious abuses. No credible data suggests otherwise.

The industrial shift from goods to services has accelerated in the past two decades; we are now largely a white-collar society. While even its detractors acknowledge that monitoring plays an important role in policing the automated workplace, nothing suggests that this policy has been accomplished at the expense of the rights of workers.

We at ASIS believe that monitoring, when properly employed, serves an important management function. It can help managers enhance productivity, maintain quality production standards, spot bottlenecks, plan personnel and equipment needs, as well as enhance safety and security at the workplace.

For example, the ability to monitor telephone communications between a staff and the public helps ensure that the latter are accorded courteous and efficient service.

Proponents of the current legislation, playing on the public's fears and emotions, charge that monitoring lends itself to serious abuses, that it constitutes an invasion of privacy, and that it represents an assault on the autonomy, personal dignity, and health of US workers. They have managed, with some success, to evoke the image of George Orwell's Nineteen Eighty-Four by parading a handful of horror stories before the press.

We at ASIS have traditionally supported the privacy rights of workers, keeping in mind that we, too, are workers. However, the pending legislation is neither nor justified by the evidence at hand.

We fear that, if enacted, it will merely fuel the fires of our litigious society. Thus, we plan to advise our membership to oppose the proposed legislation.

AT PRESS TIME, THREE versions of the proposed legislation had been introduced. The bill number and their status are

* H.R. 1218--Education and Labor Subcommittee on Employment Opportunities, Carl C. Perkins (D-KY), chairman;

* H.R. 3340--Education and Labor Subcommittee on Labor/Management Relations, Pat Williams (D-MT), chairman; and

* S. 516--Labor and Human Resources Subcommittee on Employment and Productivity, Paul Simon (D-IL), chairman.
COPYRIGHT 1992 American Society for Industrial Security
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Title Annotation:Surveillance; includes related article on Congress responses to electronic monitoring legislation proposals; American Society for Industrial Security
Publication:Security Management
Date:Apr 1, 1992
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