Strayer University

Coral Springs, FL Campus

Assignment for Course: Submitted to:

LEG 500 Law, Ethics and Corporate Governance Professor Marlene Armstrong, Esq.

Submitted by:

Felipe Batista fbatis@terra.com.br 954-5734169

Date of Submission: Title of Assignment:

May 26, 2011 Electronic Surveillance of Employees

Electronic Surveillance of Employees

Assignment #1 Electronic Surveillance of Employees

1.

Explain where an employee can reasonably expect to have

privacy in the workplace.

American employees have no expectation to have privacy in the workplace. Although the Electronic Communications Privacy Act of 1986 (ECPA) prohibits the interception, disclosure or intentional use of wire, oral or electronic communications, including those which occur in the workplace without authorization, there are some exceptions that allow employers to monitor their employees. If the employee give consent to be monitored, or the communications are accessible to the general public, the employee is not covered for the ECPA. Moreover, employers can monitor employees for business purposes. The ECPA prohibited employers to monitor personal calls or e-mails, but employers are allowed to listen or read part of the employees conversation in order to find out if its a personal issue. In West Virginia, there is an Act, named West Virginia Wiretapping and Electronic Surveillance Act that protects any person from surveillance. In Brad Bowyer v. Comfort Inn of Charleston (216 W. Va. 634; 609 S.E.2d 895; 2004 W. Va.), the employee filed an action against the employer under the Act when he discovered hidden microphones in his workplace. The Act, prohibits any person from intentionally acquiring another person's oral communications through the use of some electronic or mechanical device, when that other person has a reasonable expectation that their conversation is not subject to being acquired by an electronic or mechanical device

Electronic Surveillance of Employees (W.Va. Code, 62-1D-1 to -16). Bowyer won $100,000.00 in compensatory damages and $400,000.00 in punitive damages for unlawful electronic surveillance. Different laws occur in Europe, where employee communications are covered by human rights legislation if the organization has no explicit acceptable-use policy and fails to inform employees of the monitoring of personal e-mail. Lynette Copland sued her employer, Carmarthenshire College, because they had no policy in place informing employees that their communications might be monitored. She won covered by the European Convention on Human Rights, and the Human Rights Act 1998, that protect personal communication even in workplace.

2.

In the office workplace there are typically two types of

workspaces, an open area, in which there are several desks and where conversations can be overhead, or an enclosed office, in whichwhen the door is closedconversations cannot be heard and where one would expect virtually total privacy. Explain whether it makes a difference if an employee is in an open area or in an enclosed office.

There is no difference if an employee is in an open area or in an enclosed office. In both places there is no expectation of total privacy in the workplace. Employers can monitor employees for business purposes. But in many cases, the employers were sued by labor unions for using video surveillance without previous permission. The employers must provide information and bargain with labor unions before install new video surveillance, especially hidden cameras, in workplaces. The National Labor Relations Act, section

Electronic Surveillance of Employees 8(a)(1) prohibits the employer from using that surveillance in a manner having a tendency to interfere with, restrain, or coerce employees in the exercise of such activity. But the employer also may bargain with the union the location and time that the cameras will be in use: While an employer must bargain over a proposal for the use of hidden surveillance cameras and the general reasons for such a proposal, it need not apprise the union of the location of the cameras or the time in which they will be in use. It means that the union must agree before the employer began monitoring workers, but it can use the way it wants. Even though employers find irregularities as vandalism, steals, misconduct among others, they have lost for failing to bargain or provide information of video surveillance. In Brewers and Malters, Local Union No. 6, Affiliated with the International Brotherhood of Teamsters v. National Labor Relations Board, AnheuserBush Inc., the employer installed two cameras in an elevator motor room to monitor persons were using the room for reasons inconsistent with any work assignment and possibly illegal drug activity might be ongoing, according to the Administrative Law Judge (ALJ). Even though the cameras revealed employees engaging in misconduct by smoking marijuana, urinating on company property, and/or being away from their assigned work areas for extended periods Anheuser-Bush violated the NLRA: first, by unilaterally installing hidden surveillance cameras and disciplining sixteen employees as a result of information obtained from those cameras; and second, by failing to provide information about the use, installation, and extent of the cameras. (414 F.3d 36; 367 U.S. App. D.C. 145; 2005 U.S. App). In Colgate-Palmolive case, the employer installed surveillance cameras in a restroom and fitness center with the objective of catch employees sleeping on the

Electronic Surveillance of Employees job as well as decrease the number of thefts. The court concludes that the right to investigate employee responsibility for theft or violation of company policies itself is not challenged, however, the employers unilateral change in its method of using surveillance cameras makes its a mandatory subject of bargaining because it effects the privacy rights of employees and has the potential to affect the continued employment of employees who become concerned that their every action is subject to hidden surveillance or who become subject to discipline. (Colgate-Palmolive Company and Local 15, International Chemical Workers Union, AFL-CIO, Case No. 9-CA-32158, 1995 NLRB LEXIS 893) The NRLA also protects video tape surveillance against protected activities like self-organization, form, join, or assist unions. In National Steel and Shipbuilding Company v. National Labor Relations Board, Respondent Shipwrights, Boatbuiders & Helpers, Carpenters Local No. 1300, the employer installed cameras with audio capability to record protected activities. Although the employer said that it had justifications to record these protected activities, the court held that it is an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights" and that the employer violates NRLA that reasonable, objective justification for video surveillance mitigates its tendency to coerce. ( 156 F.3d 1268; 332 U.S. App. D.C. 240, 1998 U.S. App.) In other hand, in United Food and Commercial Workers Union Local 204 and United Food and Commercial Workers International Union v. Smithfield Packing Company, the employer won the right to video surveillance based in that employers have no obligation to communicate its justification for video surveillance to employees in cases where the justification is self-evident (e.g., violence or mass picketing, etc.)." (506 F.3d 1078; 378 U.S. App. D.C. 325; 2007 U.S. App. )

Electronic Surveillance of Employees

3.

Explain if Hermans need to know whether his salespersons are

honest is a sufficient ground for utilizing electronic surveillance.

Yes, the employer can monitor its employees for business purposes. In this case, Herman, the owner, wants to know if their employees are telling the true to his customers. Since car salesmen have a bad reputation and he knows that some of their employees use to tell small lies to improve sales, he is interested to preserve his car dealership reputation and protect from any customer claim.

4.

Explain to what extent an employer can engage in electronic

surveillance of employees.

Employers can engage in electronic surveillance of employees to protect themselves from: stolen tangible and intangible items, employee disloyalty, sexual or racial harassing messages, quality control, among other reasons. To avoid employees claim to intrusion or invasion of privacy, employers must pay attention in two mains factors: the obnoxiousness of the means used to intrude and the reasons for intruding. Employers must have a good reason to surveillance. In some states, as Connecticut and Delaware, there are laws to protect employees against e-mail monitoring without notice.

Electronic Surveillance of Employees 5. Explain to what extent the inclusion of innocent, unaware

third-parties in such surveillance determine whether it is legal.

The video shows an audio surveillance where a costumer is not aware that shes been recorded. Although federal laws allow private recordings of conversation as long as one party consents, some states require both parties to consent to audio taping. In Florida, recording, disclosing, or endeavoring to disclose without the consent of all parties is a felony. Anyone whose communications have been illegally intercepted may recover actual damages or $100 for each day of violation or $1,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. (Florida Statute chapter 934). If this video was recorded in Florida, Shelly would have reason to say: customers find out you're listening in on them too ( ) invade their privacy.