<nettime> lawsuits and workplace monitoring

[dana hawkins <dhawkins@usnews.com>]

hope you're doing well. (i'm sweltering in dc!) in this week's magazine,
we look at the #1 motive for electronic monitoring of workers: lawsuits.
my article spins off a survey to be released tomorrow by the american
management association, in collaboration with U.S. NEWS & WORLD REPORT,
and the epolicy institute. it found that almost 10% of firms report having
received a subpoena for employee e-mail, and nearly 1/3 of the largest
companies say they've been subpoenaed. we also discuss the views of a
minn. judge who's challenging the conventional wisdom that businesses own
not only the computers, but also the personal messages, unfinished drafts,
and other thoughts that workers type into them. the ama, as you may
recall, issues a report on workplace monitoring each spring that gets
splashed all over the front pages and the networks.  earlier this year,
the ama asked me to submit questions for a new follow-up survey. in
return, they allowed usnews to break the story, and are giving us full
credit as collaborator. here's the link to "lawsuits spur rise in employee
monitoring": http://www.usnews.com/usnews/issue/010813/work/workplace.htm
(you'll find the actual text below.)

and here's the link to my webpage, with dozens of stories in the areas of
workplace, financial, internet, and medical privacy:  
http://www.usnews.com/usnews/nycu/tech/teprivacy.htm

as always, please let me know if you want your name removed from this
list.

best, dana

Lawsuits spur rise in
employee monitoring

By Dana Hawkins

In case you haven't heard, your company is probably peeking at your
E-mail, computer files, and Internet surfing log. But why? Are employers
concerned about productivity, worried about workers spilling company
secrets, or are they just plain nosy? The answer may be all of the above.
But the No. 1 reason for monitoring these days is to avoid the hot lights
and high costs of courtroom drama. Companies say they need protection
against lawsuits, and surveillance software and other tools that allow
them to snoop are becoming less expensive and easier to use.

At the same time, some legal experts are taking a contrarian view. They
don't believe that companies are always entitled to rummage through
workers' E-mails and files for information, which can be used to fire
employees at will.

A survey of 435 major U.S. firms, to be released this week by the American
Management Association, in collaboration with the ePolicy Institute and
U.S.News & World Report, examines why these companies are monitoring
workers. Of the firms surveyed, almost 10 percent report having received a
subpoena for employee E-mail. Nearly one third of the largest companies
say they've been subpoenaed, and also report firing employees for sending
sexually suggestive or otherwise inappropriate E-mails. One quarter of the
firms surveyed say they perform key word or phrase searches, usually
looking for sexual or scatologi- cal language.

The motivation is clear: "Almost every workplace lawsuit today, especially
a sexual harassment case, has an E-mail component," says Nancy Flynn,
executive director of the ePolicy Institute, which develops E-mail and
Internet policies for employers. The survey also found that barely half of
firms require staff to acknowledge, in writing, that they understand the
company's computer-use policy, which is often vague and buried in an
employee handbook.

The rise in monitoring and the resultant firings have paralleled the
increased reliance on technology in the workplace over recent years. The
new Electronic Policies and Practices Survey is a follow-up to the AMA's
annual look at employee surveillance, released last spring. That report
had found that more than 75 percent of major U.S. firms record and review
their workers' communications–double the 1997 figure. Last June, at least
20 state employees in South Dakota were fired or disciplined for allegedly
burning job time surfing sports, shopping, and porn sites. An
investigation of the 100 workers who visited the most Web sites during a
three-week period revealed thousands of inappropriate hits, says a
spokesman for the governor's office.

E-mail as evidence. Employees are asking why they are so often kept in the
dark about when and how their computers are searched. Some workers fired
from the New York Times's business office and more recently at Computer
Associates International say that although they received offensive E-mail,
they did not send it. Both companies dispute the claims. Some employees
also say they weren't shown the evidence against them. "We didn't want to
bring pornography into the employee meetings, because it's not
appropriate," says Deborah Coughlin, a spokesperson for CAI. Giving
workers a chance to respond to such accusations can make a big difference.
Officials in South Dakota say when they discussed the reports with
workers, one was cleared because he successfully argued that he wasn't
even in the office when his computer recorded a substantial number of
visits to questionable Web sites.

James M. Rosenbaum, chief judge of the U.S. District Court in Minneapolis,
is challenging the conventional wisdom that businesses own not only the
computers that employees use but also the personal messages, unfinished
drafts, and other thoughts that they casually type into them. In a recent
essay published in the Green Bag, a law review, Judge Rosenbaum proposes
that investigations of workers' computers be handled like other legal
searches. Companies should have probable cause, searches must be limited
in scope, and employees need to be given prior notice and allowed to be
present during the search, he argues. "I'll bet you all the money in the
world I can go into your computer and find a basis to fire you," says
Rosenbaum. "Computers never forget, which would be terrific if humans were
perfect, but they aren't."

This survey by the American Management Association, in collaboration with
the ePolicy Institute and U.S.News & World Report, examines why companies
are monitoring workers. For the full report, click here.

The ePolicy Handbook. Containes sample E-mail, Internet, and computer-use
policies for companies.

Job loss monitor. The Privacy Foundation's Workplace Surveillance Project,
keeps tabs on firms that have fired or disciplined employees based on
computer use.

The Green Bag. In this law review, James M. Rosenbaum, chief judge of the
U.S. District Court in Minneapolis, proposes that investigations of
workers' computers be handled like other legal searches.





Dana Hawkins, Senior Editor U.S. News & World Report 1050 Thomas Jefferson
St., NW Washington, D.C. 20007 (202) 955-2338, dhawkins@usnews.com
www.usnews.com/usnews/nycu/tech/teprivacy.htm




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