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Online surveillance by employers- Your rights as an employee
January 31st, 2008
It’s relatively recent that employers have begun checking out their employees online, but it’s created plenty of problems in a short time, none of them pleasant reading.
The New York Times recently published a story about a student teacher fired from her job because someone found a picture of her on myspace, with the caption ‘Drunken Pirate’. The teacher was fired and denied her teaching credentials. She’s now taking legal action.
Some points:
- Laws do apply to employers. There is no legal power granted to any employer, including governments, to conduct surveillance of their employees outside business and the legitimate context of employment.
- No employment contract is a basis for surveillance. An employer cannot enter into a contract to commit an illegal act. As far as I know, no legal or constitutional right can be waived by contract, either.
- Only police and government agents can be authorized to conduct surveillance of this kind, and they have to get the permission of a court.
The person fired wasn’t on school premises, wasn’t conducting school business, or engaged in anything related to the employer or terms of employment. She wasn’t committing a crime, a felony or a misdemeanor. Her career has now been wiped out, purely on the basis of a photo.
There are a few possible reasons:
- Somebody didn’t like her, and convinced management, who should have known better, to fire her, after finding that photo. The workplace can be very treacherous, and this is a fact of life. Always be careful what you post on the net. It’s really none of your employer’s business, but as you can see, it can come back at you.
- Another possibility is a form of workplace bullying, also much too common. In that environment, the risks are worse, if anything.
- The employer didn’t know the laws. That, sadly, is quite common, and in this field there are grey areas. There’s been a plague of lawsuits on surveillance cameras and other ‘employee monitoring’ methods, which are also legally very dubious.
For employees, the basic rule is ‘Know your rights.’ Depending on which country you’re living in, those rights vary a bit, but not much, regarding the basics. There are legitimate grounds for firing people, and you need to understand the laws, for your own protection.
Suggestions:
- There should be guides available to staff regarding workplace practices, rules, and terms of employment, available from Human Resources.
- Search your local government industrial relations site, or equivalent.
- Ask your union representative.
- Some lawyers specialize in employment. It would be worth your while to get advice, or some of the information they provide to potential clients.
- Experienced workers can also provide useful information, to a point. They may not want to say anything likely to start an in-house war.
- Some managers don’t like unfair work practices, either, and may be willing to help. Often they can defuse explosive situations upstream, because they have the internal contacts.
IMPORTANT:
If you are in this situation, don’t confront management on your own. Be extremely careful what you say, and to whom. Generally, say nothing to anybody not directly involved in the situation. There’s a risk of negotiating or talking yourself into an even more vulnerable position, where the employer’s doing you a ‘favor’, or finds another excuse to fire you and deprive you of your entitlements. You will need support and information, either legal or from a union.
If you get a peace offer from an employer, and are forced to make a choice in a dispute involving surveillance, accepting the offer commits you to the agreement. Get advice. You may be agreeing to have your rights abused again, this time with your own consent.
The good news is that this lawsuit, if it proceeds to a decision, will affect workers throughout the United States. The main reason this problem even exists is lack of legal direction. The net is so new that the laws are being made on the run. This area is really overdue for clarification, but it’s happening.
Bottom line: Anyone intruding on your privacy is potentially dangerous. Employer surveillance and cyber-stalking are both forms of invasion of privacy.
You don’t have to tolerate either.
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