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Who's watching the workplace? The electronic monitoring debate spreads to Capitol Hill.

At an auto-parts factory in Ontario, 40 employees brought a lawsuit against their employer for having video cameras installed in their restrooms. A police undercover drug squad had installed the cameras for temporary surveillance because a Colombian drug cartel was suspected of operating there. * Female nurses in a Connecticut hospital discovered a concealed camera in their locker room and found it was monitored by male security officers. The nurses complained this was a violation of their privacy. * An electronic mail (e-mail) system administrator was fired from a California computer company for insubordination after she alleged that the company's interception and reading of e-mail messages violated the privacy of employees...

1984 has come and gone, and yet the question remains: Is Big Brother watching? In George Orwell's epic novel 1984, residents of a futuristic London were subject to a police state where every movement was watched-at work and at home. In 1991, our society is steamrolling ahead with new electronic surveillance technologies that sometimes make the old ones obsolete in a matter of just a year or two.

In recent years technology has given us the ability to send e-mail messages, work on networked computers, talk on cellular and cordless phones, and observe activity happening elsewhere through video, activities that are not only feasible but increasingly affordable. These breathtaking technologies have also provided employers with the means to more closely monitor employees and keep track of productivity and illegal activity.

However, new bills in Congress may threaten security managers' ability to safeguard their companies and investigate wrongdoing. In the interest of protecting employee privacy, these bills would require companies to notify employees in writing that they will be monitored and to signal to employees when they actually are being monitored.

Though geared to productivity monitoring, those requirements could also severely limit the effectiveness of such security measures as * reading employees' e-mail, * listening in on employees' phone conversations, * accessing employees' hard drives, * monitoring employees through networked computers, * tracking employees with electronic badges, and * monitoring employees with video cameras or CCTV.

According to a reader poll conducted by Nation's Business, 64 percent of respondents think employers should be required to notify workers in advance that their work may be electronically observed. Twenty-five percent of the respondents think employers should be required to signal workers and customers when they are being monitored. The survey results are based on the opinions of 1,555 respondents to the August 1991 "Where I Stand" poll on monitoring employees.

Privacy is an issue of concern to individuals and employers alike. In 1890, Louis D. Brandeis and Samuel D. Warren set the precedent that virtually created the right to privacy in America with an article in the Harvard Law Review that declared privacy "the right of the individual to be let alone."

The authors remarkably predicted, "Numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'"(1) They could not have imagined the scope of the mechanical devices available today.

The battle lines have been drawn in the debate over workplace privacy. On one hand, no one likes the idea of being constantly watched. On the other hand, legitimate circumstances exist that call for such monitoring, and security managers want to be heard on the issue. SECURITY MANAGERS FACE A DILEMMA: to provide a secure workplace without violating employees' privacy. They must bear the responsibility for providing a safe and secure workplace for all employees.

Take the example of a hospital that has experienced a rash of drug thefts. The hospital security director has sufficient evidence to believe that drugs are being bought and sold in the nurses' locker room and installs CCTV cameras there to monitor activity.

On camera, a nurse is observed passing drugs to another woman. She is questioned and fired. The hospital investigates and decides not to file charges against her, but she sues the hospital for invasion of privacy.

Although this is a fictitious example, it is not far-fetched and is typical of incidents that are of grave concern to security managers. In this case, the security manager had probable cause to investigate drug trafficking on the premises. Yet before proceeding with an investigation, a security manager must look at another factor: the possibility of a lawsuit.

In one recent incident, contractors that operate US nuclear weapons facilities, including the Hanford plant in Washington state, the Nevada Test Site, and the Idaho National Engineering Laboratory, allegedly violated Department of Energy (DoE) rules by obtaining wiretapping and eavesdropping devices to spy on employees, according to a report by DoE Inspector General John C. Layton.

According to the report, some employees were videotaped without their knowledge and without the required court order for surveillance. The contractors allegedly used the equipment to investigate thefts, spy on workers away from the plant, and record telephone conversations between plant personnel and reporters. (2)

Cases like this illustrate the complexities of the issue. The security manager is responsible for keeping losses down and therefore must aggressively pursue employee thefts. But can an employer legitimately monitor employees' conversations with reporters?

To answer that question, one must know why the monitoring is being pursued. The nuances are endless, and some argue this is not the kind of cutand-dried issue that can be solved easily with legislation.

Electronic monitoring in the computer age is a little neater than traditional surveillance or investigation methods. No longer does a manager have to rummage through desk drawers and file cabinets; with the right equipment he or she can simply access files on a person's PC-even, through the virtue of new software currently being marketed, on a user's hard drive.

Such activity has advocacy groups like the American Civil Liberties Union (ACLU) screaming "foul." "Employees are human beings," said Lewis Maltby, director of the ACLU National Task Force on Workplace Rights, in testimony before a congressional subcommittee regarding the legislation. "They have-or at least ought to have-a right to privacy. Employers need information about job performance, but that need must be balanced against employees' reasonable expectations of privacy."

For the security manager, it is more than a question of safeguarding information. Security must deal with questions of liability as well. The failure to ensure a safe, secure, drug-free workplace can subject an employer to millions of dollars in liability claims.

When employee negligence or carelessness or product defects result in injuries or monetary loss, the security manager is often the first to be confronted. The old refrain, "How could something like this have happened?" often surfaces when employers are faced with a lawsuit and looking for someone to blame.

Again, how can a security manager balance the need for a workplace free of violence, theft, and drug abuse with the privacy needs of employees? Is monitoring the answer, and if so, how can security managers do it legally?

The Fourth Amendment of the US Constitution protects the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." And most state constitutions have similar provisions. But these provisions inadequately address electronic monitoring and apply only to searches by government officials.

According to a report from the Bureau of National Affairs, although a wide variety of technologically advanced methods of surveillance are available, "most legal decisions address employer rights to use less-sophisticated technologies such as video cameras and eavesdropping equipment."(3)

The major public law that currently addresses electronic surveillance is Title Ill of the Omnibus Crime Control and Safe Streets Act of 1968, which was designed to protect the privacy of wire and oral communications.

At the time the act was passed, electronic surveillance was limited primarily to simple telephone taps and concealed microphones. Since then, the basic communications infrastructure in (1) Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review, 1890, Vol. 4, No. 5, p. 193. (2) Thomas W. Lippman, "DOE Contractors May Have Used Bugs," The Washington Post, August 1, 1991, p. A18. (3) Robert L. Duston, Karen S. Russell, and Ira Michael Shepard, Workplace Privacy (Washington, DC: The Bureau of National Affairs Inc., 1989), p. 228. the United States has changed rapidly, and the law has not kept pace with the technology.(4)

Congressional legislation currently under consideration (H.R. 1218 and S. 516) would severely restrict electronic monitoring of workers. (For more on the Senate legislation, see the accompanying box).

The Privacy for Consumers and Workers Act would require employers to provide employees with prior written notice of electronic monitoring and to signal them aurally or visually when monitoring is being performed. It would also require that employees be informed of * the forms of electronic monitoring to be used, * the personal data to be collected, * the frequency of the monitoring, and * the use of the data collected.

The House bill's sponsor, Rep. Pat Williams (D-MT), in introducing the legislation at the Subcommittee on Labor-Management Relations hearings on Capitol Hill, said the legislation is necessary to protect employee privacy at a time when monitoring has become prevalent in many industries.

"In 1987, the Office of Technology Assessment estimated that 6 million workers were being monitored," noted Williams. "Where once only a few kinds of workers such as telephone operators and airline reservation agents were monitored, new technological capabilities now track employees from truck

drivers to nurses to journalists," he continued. The House bill has more than 100 bipartisan cosponsors.

Robert Ellis Smith, publisher of the monthly Privacy Journal, considers the legislation very modest; it's just basic fairness." August Bequai, a Washington, DC-area attorney who specializes in industry-related security issues, thinks the legislation, in its current form, would hinder security managers' ability to perform basic security functions.

Most of the interest groups following the debate favor limited monitoring with the employee's knowledge. Employees, in general, want no monitoring. And the security industry tends toward unobstructed monitoring. All sides are heatedly involved in the debate on Capitol Hill. (4) Electronic Surveillance and Civil Liberties (Washington, DC: US Congress-Office of Technology assessment, 1986), p. 3. WHAT ARE CONSIDERED LEGITIMATE USES of monitoring? Monitoring has become prevalent in recent years, especially in service-oriented industries like insurance and telecommunications, where it is mainly used to assess performance and productivity. Security managers use electronic monitoring mainly to investigate criminal activity or misuse of company property.

Groups like the ACLU consider the only legitimate purpose of monitoring to be assessing productivity, and they support the requirement of a visual or aural signal when monitoring is being performed. "We believe that no conversation should be intercepted or recorded without the consent of all parties to the conversation," Maltby testified in the subcommittee hearings.

However, some think the new legislation could hinder necessary, security-related information-gathering efforts. Vincent Ruffolo, president of A&R Security Services Inc. in Blue Island, IL, and chairman of SCOLA (Security Companies Organized for Legislative Action), also testified at the subcommittee hearings on the electronic monitoring legislation. He argued that security managers need to use monitoring for a variety of purposes and in a variety of forms.

For instance, security might monitor employees entering and leaving a building by electronic access control devices that record when a specific employee enters or leaves. Under the legislation, such a log might be prohibited as unrelated to work performance.

SCOLA is a coalition of five associations representing the guard, alarm, armored car, and investigative services industries. The association represents more than 3,000 firms in the private security industry and more than I million employees.

The bill also states that information gained by monitoring, even if the employee is aware that monitoring is being performed, cannot be used as the sole basis for employee evaluation or disciplinary measures.

According to Kurt Decker, an attorney with the Reading, PA, firm Stevens & Lee, "If an employer has acted responsibly and informed an employee that he or she is being monitored, then there's no reason it should have to come up with additional evidence."

"While a prohibition against using electronically gathered performance data as the exclusive or sole basis of setting performance standards or evaluating employee performance may seem reasonable on its face," argued Thomas Flood, vice president and general manager of operator services for Pacific Bell, in testimony before the congressional subcommittee, "it does not take into consideration cases where fraud, loss of revenue, or gross customer abuse are involved.

"Our policy is that no employee will be dismissed solely as a result of monitoring unless fraud, secrecy of communications, loss of revenue, or gross customer abuse takes place; where such violations are found, termination may be immediate." He concluded that "the legislation should consider an employer's right to take appropriate action under extreme circumstances."

Consider another imaginary-or very real-scenario: An executive arrives at work one morning and notices several expensive pieces of office equipment

missing. By checking the access control monitoring records, the security manager finds out that employee John Smith was the only person to enter and leave the building between closing time the previous evening and that morning. In addition, there were no signs of forced entry.

Such records can obviously prove useful to the security manager, says Paul Rathblott, vice president of Baker Industries in Parsippany, NJ. Yet, under the confusing language of the new legislation, they may become outlawed.

But Privacy Journal's Smith contends that there is no legitimate use for monitoring employees without notifying them first. "If monitoring is intended to deter misconduct, notifying employees will only help the effort," he says.

Smith claims that if a major crime such as drug trafficking is suspected on company premises, the security manager should go to the police or other law enforcement agency rather than trying to handle it himself or herself

Decker agrees. He believes the only legitimate use of electronic monitoring is for a performance or productivity evaluation, and in such cases employees should be told they're being monitored. He says monitoring should not be used to observe criminal activity, saying such matters should be left to the police or other authorities.

"If an employee is dealing drugs in the workplace, then he or she's probably doing it outside the workplace as well," says Decker. "And if the employee is notified that he or she is being monitored and discontinues the illegal activity while at work, then how is the employer really harmed?"

Some security managers think the legislation would cripple their investigations of suspicious employees. Bequai comments that if the bill is passed in its present form, it will have a tremendous impact on the security industry.

"All sorts of surveillance and tracking methods will be affected," he notes, "in addition to surveillance techniques widely used as an efficiency tool by managers."

The bill defines 'electronic monitoring' as "the collection, storage, analysis, and reporting of information concerning an employee's activities by means of a computer, electronic observation and supervision, remote telephone surveillance, telephone call accounting, or other form of visual, auditory, or computer-based surveillance conducted by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system."

Security managers say it's not what the bill says that bothers them-it's what it doesn't say. By not specifically pointing out that the bill refers to electronic monitoring for productivity and performance evaluation, it leaves monitoring for security purposes open to risk.

Depending on one's interpretation, the bill could have an impact on all aspects of modem business, including security.

One example is video cameras, which serve both as a deterrent to theft in busy areas like stores and banks and as a safety element in secluded parking garages or other areas.

The legislation could bring a halt to such monitoring because, as Ruffolo pointed out, under the technical language of the bill such uses could be deemed unrelated to work performance. For the same reasons the bill would also-whether intentionally or not-limit reviews of bank, telephone, and credit card usage records.

The bill's sponsors say they don't intend such restrictions, but with its current wording security managers are worried they may become reality. ALTHOUGH CONGRESS MAY NOT INTEND it, some experts think the legislation will make the security manager's task difficult in other ways as well. For instance, the bill prohibits the monitoring of an employee exercising rights guaranteed by the First Amendment.

Rathblott of Baker Industries argues that "this provision is impossible to understand because virtually everything an employee does could be considered within his or her First Amendment rights."

According to Ruffolo, "The bill is drafted with such broad and vague language that it would seriously impair a business's ability to safeguard its patrons and employees and to protect personal and business assets located in and about the business premises. It would also make it difficult to document off-premises fraud, theft, and sabotage."

Revlon Corporation, headquartered in Edison, NJ, with 27,000 employees worldwide, uses a variety of monitoring methods, including CCTV, electronic card readers, and tracking badges that can monitor the movements of employees from building to building.

Lou A. Tyska, CPP, Revlon's corporate security director, notes that the competitive nature of the cosmetic industry makes it is important to monitor people, places, and things extensively.

"If someone were to interpret the legislation literally, we would forfeit our ability to provide an effective shield of protection and control of our physical assets. The legislation may be well-intended and well-meaning, but if enacted in its current form it would take away valuable support to the assets protection field. Security professionals and businesspeople across the board would suffer from the passage of this bill," Tyska says.

Do employees have a right to be unmonitored? After all, an employee is hired with the expectation of being paid in exchange for work performed, and monitoring is one way a company can ensure performance.

But the Communications Workers of America (CWA), a professional union representing more than 600,000 workers in the telecommunications industry, claims electronic monitoring harms workers' health.

CWA and the University of Wisconsin produced a study of employees in the telecommunications industry that showed that "electronic monitoring of employee performance adversely affected employee perceptions of their working conditions and was related to increased levels of job boredom, tension, anxiety, depression, anger, and fatigue."(5)

Some, like Lawrence Fineran, assistant vice president and director of government regulation, competition, and small manufacturing for the National Association of Manufacturers (NAM), say that if a company has purchased expensive computer equipment or an e-mail system, it should have free access to it at all times. Fineran testified before the House subcommittee.

Tyska of Revlon says that privacy has never been an issue in monitoring at Revlon. "Our employees look at this as a form of convenience and protection and nothing more," he says. And the company benefits when investigative monitoring helps it fire wrongdoers and avoid litigation.

Most experts agree that the wording of the bill needs to be changed if its intended purpose is to be achieved. "If Congress is going to pass a law and they don't intend the results that follow from the plain language, then they (5) David LeGrande, Katherine Rogers, Pascale Sainfort, and Michael J. Smith, Electronic Performance Monitoring and Job Stress in Telecommunications Jobs," October 5, 1990. ought to change the wording of the bill," Rathblott says. THE BILL STILL FACES ROUNDS OF COMmittee hearings before it comes up for a vote. In the meantime, how can security managers protect themselves and their organizations?

"Privacy issues are maturing in the 1990s," says Decker, "and employers are going to have to act responsibly in order to preserve their rights." That means that even without legislation on the books an employer should take it upon itself to inform employees if they are being monitored. "The rights of the employer must be balanced against the rights of the employee," Decker says.

Tyska says employers should follow several steps to protect themselves in the course of an investigation. First, they must use a reasonable approach to monitoring and must have a specific need. Second, monitoring should be used in limited exposure and with tight controls. Third, the users must be reasonable and prudent with the information compiled through monitoring.

But Tyska notes that "notifying employees of monitoring would completely defeat the purpose of undercover monitoring for investigative purposes. It would make it impossible to pinpoint a thief."

However, notifying employees of monitoring actually benefits the employer, Decker contends, since by nature many people continue wrongful activities even after they've been informed of monitoring.

"When the caught employee brings up the argument that the monitoring was unfair, the fact that he or she was informed of the monitoring dispels that argument. The whole investigation looks a lot more aboveboard," Decker says.

Whether the current legislation becomes law or not, security managers must be ready for its impact. Preparing a strategy now for the use of electronic monitoring may cut potential problems off before they occur. Caroline M. Cooney is staff editor of Security Management Note: At press time, a compromise bill, H.R. 3340, was introduced by Rep. Douglas Bereuter (R-NE). An ASIS position statement will appear in a future issue of Security Management. Safeguard or Spy? Technology battles liberty in subcommittee hearing.

The same covert monitoring system in the same company may record one employee's frequent trips to the rest room and another's drug-dealing. The same system can be both an intruder and an asset.

A bill before the Senate subcommittee on employment and productivity seeks a balance between a worker's right to privacy and an employer's responsibility to protect company assets.

Hearings on S. 516 began on September 24. Testimony from experts on both sides of the issue and from workers who had been monitored was heard by Sen. Paul Simon (D-IL).

In his opening remarks, Simon stressed, "S. 516 does not prohibit electronic monitoring; it is simply a notification bill. The legislation strikes a careful balance between the demands for technological change and the need for citizen protection."

But security professionals don't see that careful balance. The bill is written in such broad terms that it would interfere with a security department's duty to safeguard customers, employees, and company assets, testified Vincent L. Ruffolo, president of A&R Security Services Inc. and chairman of Security Companies Organized for Legislative Action (SCOLA). "It would also make it difficult to follow through on investigations that may require off-premises documentation."

Ruffolo asked the senator how a security department that is forced to indicate when monitoring is taking place can be expected to gather evidence against an employee who is stealing drugs from his or her employer and selling them in the workplace. "We'd be out of business," Ruffolo said. "We wouldn't be able to handle these types of thefts."

The airlines also oppose the bill. They worry that its broad language would restrict safety, security, and quality assurance monitoring.

Testifying on behalf of the Air Transport Association of America, Edward A. Merlis, vice president of policy and planning, said, "The surest way to defeat security controls is to let potential perpetrators know of their existence, method of operation, and location."

Also offering opposition testimony was Lawrence Fineran, assistant vice president of government regulation and competition for the National Association of Manufacturers.

In questioning after the opposition testimony, Sen. Simon said he and the other members of the subcommittee would be contacting the opposition spokespersons to work through their security concerns.

The supporting testimony focused on the stressful effects of monitoring employees for productivity measurements and not on monitoring for security purposes.

Cindia Cameron, speaking for 9 to 5, the National Association of Working Women, said her organization receives hundreds of phone calls from women asking how they can protect themselves. Women, who hold the majority of telemarketing and reservation sales positions, would be disproportionately affected by the bill.

Cameron said that monitored employees have the "feeling that their dignity is being taken away."

Also speaking in support of the bill was Morton Bahr, president of the Communications Workers of America (CWA). CWA represents more than 600,000 workers in telecommunications, printing, health care, and government.

Bahr said that employers "covertly count the number of keystrokes workers produce every minute on video display terminals" and stealthily photograph employees who are honorably doing their jobs.... Management's use of secret electronic surveillance goes far beyond monitoring of the work. It trespasses outrageously upon the privacy rights of the worker."

Bahr cited a letter sent to CWA in which a former operator recounted how her manager, obsessed with quick turnaround of calls, disconnected a person contemplating suicide.

Others testifying in support of the bill were Renee Maurel, a reservationist with Northwest Airlines; Carol Scott, a customer service representative with New Jersey Central Power and Light; Gary T. Marx, PhD, a professor of sociology at MIT and an expert on privacy issues; and Marc Rotenberg, Washington director of Computer Professionals for Social Responsibility. Lisa Arbetter is editorial assistant at Security Management.
COPYRIGHT 1991 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Special Issue; includes related article
Author:Cooney, Caroline M.; Arbetter, Lisa
Publication:Security Management
Article Type:Cover Story
Date:Nov 1, 1991
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