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Claudia Terrazas
interviewed by Emma Taylor on November 29, 1995
"Your employer can monitor your email without notifying you."
Claudia Terrazas works with the Privacy Rights Clearinghouse.
Tripod: Is it true that workplace monitoring is virtually unregulated by the law?
CT: To a certain extent, that is true. There is, especially here in California, some case law that is currently pending that may define some issues that are currently unanswered, with respect to email monitoring and voice mail monitoring in the workplace. But you are correct in saying that there is generally no federal legislation dealing with workplace monitoring, as it stands right now.
As you may be aware, Senator Simon introduced a bill last year, with respect to monitoring and informing the employees of monitoring. But unfortunately that bill did die, and given the nature of Congress right now, he pretty much gave up on the idea.
Tripod: I just read about the McDonald's supervisor who discovered amorous voice mail messages between two of his co-workers, and played some of the messages to the man's wife. Is this case likely to set a precedent?
CT: Absolutely. We are all watching to see what issues will be addressed with respect to case law. Yes, we are definitely looking at the employer's right to monitor voice mail as it will be tested in that New York case.
Tripod: Which way do you think the case will go?
CT: I don't know. Other case law dealing with email monitoring -- that has gone the way of the employer, pretty much. I don't necessarily agree with that, but we're more of an education program, we're not an advocacy group. But generally it has been based on the notion of ownership, so case law here in California has determined that if the employer is the owner of the system, then they can monitor whatever is transferred on their system. However, that same rationale doesn't hold true, for example, even though the employer owns the rest rooms, they don't have a right to monitor what goes on in a rest room. So there is some criticism to that rationale.
Tripod: So at the moment, email is not private?
CT: I think the best thing to do as an employee is to find out what your employer's policy is, if there is such a policy in place. If not, you're going to meet up with the fact that your employer may monitor your email.
Tripod: And your voice mail?
CT: And your voice mail -- at this point. It would be different with a telephone communication call. There is some case law that holds that if an employer is monitoring a phone call, and they realize that the call is personal, then they have to immediately stop monitoring that call.
Tripod: But if an employee is told not to make personal calls at work, then his personal calls can be monitored, right?
CT: Right, because you were put on notice that you have no expectation of privacy in that communication. If you were told beforehand that only business calls can be made through this phone, then you take your chances making a personal call.
Tripod: So can an employee be monitored in the workplace without their knowledge?
CT: Yes, unfortunately that is true. What I do stress is to find out if your employer does have some sort of policy with respect to monitoring in the workplace. But as it stands right now, your employer can monitor your email without notifying you. Again, this is based on this notion that they are the owner of the system, so they can monitor what is on the system.
Tripod: How common is workplace monitoring?
CT: I don't have a statistic for you. I know that Communication Workers of America did do a study, but the study focused more on stress. So it is being done. The CWA study did show that employees that are subject to this continuous monitoring showed significant stress.
Tripod: What about once you have deleted email and voice mail messages -- can they still be monitored?
CT: Yeah, and I think that this is something that we need to be careful about. Sometimes you're given the notion that because you use a password, or anything else to get into your email, you're given the notion that there is some sort of privacy attached to that. Or that if you write something and delete it, that it will be taken away forever. But I think, as we are seeing more and more often, that's not the case. As a matter of fact, there are specific companies that will try to locate whatever has been "erased," and will use it as evidence in cases. You can't rely on the fact that since you deleted the message from your email, that it has been destroyed.
Tripod: So each advance in technology is eating away at privacy in the workplace?
CT: Oh absolutely, absolutely.
Tripod: How can someone create a degree of privacy in the workplace?
CT: I think what employees need to know -- and I know I'm repeating myself -- is to find out if they employer does have a workplace policy on monitoring. If not, then definitely work on one, because in that way, at least you will know what to expect from your communications. But as it stands right now, I think the best advice is to be aware that your communications are not private. If you send an email message, that is not considered private if you are in the workplace.
Tripod: It seems that employers are increasingly invading privacy outside of the workplace. I'm thinking of the case of the IBM employee who was told to choose between her job and her boyfriend, because her boyfriend worked for an IBM competitor. Are there laws governing privacy outside of the workplace?
CT: I know that it's gotten now to the point where employers are looking at other aspects outside the workplace. I think it's a balancing test. If the employers argue that they need to have a healthy work environment, then you have to balance that against the invasion of privacy that is being made. I believe that there was also a Walmart case, where that issue came to play. It was a New York case, and it pretty much held for the employer.
Tripod: What resources are available for employees who have concerns about privacy in the workplace?
CT: There are a few places to go. We have a Web page that deals with workplace issues, or they can call our hot-line at (619) 298 3396. We can answer questions on technology-related privacy issues. There are some other places you can call -- the ACLU has a workplace privacy task force, and they can answer questions on privacy issues.
Do you feel like somebody's watching you? Visit the Privacy Rights Clearinghouse at http://pwa.acusd.edu:80/~prc/
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