Forwarded From: ama-gi ISPI <offshore@email.msn.com>
ISPI Clips 4.48
News & Info from the Institute for the Study of Privacy Issues (ISPI)
Saturday September 19, 1998
This From: US News Online, September 15, 1998
http://www.usnews.com
Who's watching now?
Hassled by lawsuits, firms probe workers' privacy
http://www.usnews.com/usnews/issue/970915/15priv.htm
BY DANA HAWKINS
In the secrecy of night, a pair of private detectives meet their client at
the back entrance to the communications company he owns. The man opens the
door; they all slip inside and proceed to a worker's cubicle. The
investigators sift through his file cabinets, desk calendar, Rolodex, and
voice mail. They check a company caller-ID machine that recorded all the
numbers he called in the past six weeks. Then they "bag" his computer,
downloading information from the hard drive, where the most damning data
usually reside. One of the detectives is a forensic computer analyst, who
will recover E-mails and documents long ago erased. With any luck, they
will find what they are looking for: evidence that the worker gave
proprietary information to a competitor.
The incident described above--known in the gumshoe trade as a "midnight
raid"--is true. Similar intrigue takes place regularly in workplaces
across the country, for a variety of reasons: to collect evidence to fire
an employee, to defend against a discrimination lawsuit, to catch a
company thief. "We do them all the time," says Christopher Marquet, senior
director for global development at Kroll Associates, a leading
investigative firm. "We have 22 offices worldwide, so there's probably
always one going on somewhere." (Kroll was not the agency involved in the
case above.) Employee investigations--which sometimes lead to a raid--have
increased an average of 30 percent for each of the past three years,
according to Kroll and its competitors.
Keeping watch. Companies not only have stepped up midnight raids but no
longer hesitate to seek information on what was once assumed to be the
private side of workers' lives. More than one third of the members of the
American Management Association, the nation's largest management
development and training organization, tape phone conversations, videotape
employees, review voice mail, and check computer files and E-mail, a
recent AMA report states. Scrutiny of job applicants has intensified, and
this has fueled a boom in companies that do database searches of
applicants' credit reports, driving and court records, and even workers'
compensation claims. Personal behavior is no longer off limits: Some
firms have adopted rules that limit co-workers' dating. Others ban
off-the-clock smoking and drinking. Many companies regularly test for
drugs.
Much of this occurs without the workers' knowledge. While companies say
they collect information on their employees to comply with the law and
protect their business interests, a recent survey of Fortune 500 companies
showed that nearly half collect data on their workers without informing
them. A majority said they share employee data with prospective creditors,
landlords, and charities. "Many of these invasions--unthinkable a few
years ago--have become institutionalized," says Craig Cornish, co-chair of
the American Bar Association's workplace-privacy group.
Why has the worker's sphere of privacy shrunk? Employers say they feel
intense pressure from lawsuits of every sort. The number of sex, race,
disability, and age-discrimination suits brought by workers has more than
doubled from over 10,700 in 1992 to 23,000 in 1996. Some of the cases
focus not on management misbehavior but on what employees do to each
other. For instance, workers assaulted by co-workers have sued their
employers for negligent hiring. Morgan Stanley, a big Wall Street
brokerage, was sued for $70 million by workers over racist jokes that
appeared on the company's E-mail system. The plaintiffs claimed the jokes
created a hostile work environment. The case was dismissed last month.
"Nothing would please my clients more than to never again read an
employee's E-mail," says Jay Waks, a New York attorney who represents
corporate clients in employment litigation. Still, he says employers have
no option but to protect themselves: "If they're going to be held liable,
they'd better monitor."
Skyrocketing medical costs provide another incentive to probe, especially
for companies that self-insure. Denise Nagel, the founder of the National
Coalition for Patient Rights, says insurers have told her of employers
that routinely check into workers' medical records. Nagel says they tell
her "it happens all the time." Meanwhile, technology--particularly new
software that can track and record everything workers do on their
computers--is making it easier to peek over a worker's shoulder. And in
most places, it's quite legal. State laws vary widely, and few federal
statutes address workplace privacy. The FBI needs a court order to tap a
phone line, for instance, whereas employers have far more freedom to
listen in.
While the benefits for employers are undeniable, there are obvious hazards
for workers. Careers may be damaged when investigators overreach, when
mistakes are made, or when managers are too aggressive in enforcing
company rules. To thwart sexual harassment charges, which have risen from
6,100 in 1990 to 15,300 last year, many companies have adopted
"antifraternization," or antidating, policies. Wal-Mart is one such
company. The giant retailer says the policies were also adopted to prevent
favoritism, either real or perceived. Still, Joe and Tiffany Peters, of
Dodge City, Kan., got snagged in Wal-Mart's attempt to pre-empt problems.
The newlyweds, both 24, met a year ago while working at the local
Wal-Mart. Joe, who was then an assistant manager, says he followed company
rules, told his boss he wanted to date Tiffany, and got an OK. Since
Wal-Mart requires one member of a couple to quit or transfer, Tiffany gave
two weeks' notice to leave.
But on Tiffany's last day at work, she says, two district managers grilled
her for two hours. She was reduced to tears, she says. "They asked
explicit questions. They wanted me to say we'd had sex," she claims. "The
woman kept asking over and over: `What kind of sex was it?' It was the
worst thing that ever happened to me." Wal-Mart spokesperson Daphne Davis
contests Tiffany's account. Davis would not say what questions the
managers asked--only that they were necessary to determine whether
Wal-Mart's policy was violated.
Nothing personal. More companies are drug testing, too, hoping it will
lead to improved worker performance and lower medical costs. In 1987, only
one fifth of corporations drug tested workers, usually when drug use was
suspected. But according to a 1996 survey by the American Management
Association, more than 80 percent of corporations drug test workers,
usually at random. Similarly, drug testing of job applicants is now
commonplace. "If you had told people 20 years ago they'd have to drop
their pants and pee in a jar to get a job, they'd have thought you were
crazy," says Louis Maltby, director of the American Civil Liberties
Union's workplace-rights office.
What worries some about drug tests is their reputed inaccuracy. John P.
Morgan, professor of pharmacology at the City University of New York
Medical School, says the false-positive rate on a typical unconfirmed drug
test is 10 to 15 percent. Evelene Stein says hers is one such case. For
years, Stein submitted to random urine tests given by the Crowne Plaza
Nashville, where she was banquet captain. Then three years ago, the
53-year-old grandmother tested positive for drugs--the company would not
tell her which drugs--and was fired. Stein believes the lab mishandled her
urine sample. To try to prove her innocence, Stein says, she offered to
pay for another test. The company refused, and many months passed before
she found another job. "They ruined my reputation," says Stein. The
Tennessee Supreme Court ruled the state's constitutional guarantee of
privacy did not apply to private employers. Ralph Tipton, a spokesman for
the hotel, declined to comment on Stein's case. He says the hotel policy
"gives employees a safer, more productive place to work."
Some of the greatest strides in worker monitoring have come through
technological advances. Nurses in over 200 hospitals now wear badges
connected to infrared sensors to track their whereabouts. One badge
manufacturer, Executone Information Systems, says they are designed to
help route nurses to the patients who need them. The Tropicana Casino in
Atlantic City is testing an infrared detection system that alerts the boss
when workers leave the restroom without washing their hands.
Electronic-mail monitoring is even easier. In 1993, a Macworld study
showed that 9 percent of companies searched employee E-mail. Last year a
survey by the Society for Human Resource Management found that 36.4
percent of respondents search employee E-mail for business necessity or
security. More than 70 percent said an employer should reserve the right
to read anything in the company's electronic-communications system--while
just one third have an E-mail policy. "The number of corporations who
monitor E-mail but don't tell employees is appalling," says Beth Givens,
director of the Privacy Rights Clearinghouse in San Diego and author of
The Privacy Rights Handbook.
Flagging phrases. Such practices have fueled the growth in the
worker-monitoring business. One of the latest products is called Assentor.
The software, created by SRA International, uses language patterns to
allow corporations to search workers' E-mail for more than just simple key
words. Financial-securities firms are testing the software to finger
brokers who trade insider information, by flagging phrases like "hot
little tech stock." The software--geared to comply with a Securities and
Exchange Commission proposal that would require the monitoring of E-mail
between stockbrokers and their customers--will be available later this
year. SRA plans to develop similar programs for the banking, law, and
health care industries.
At other places, Big Brother is literally watching. Salem State College in
Massachusetts had installed a video camera in an office, it says, for
security reasons. But the college didn't tell its workers. Gail Nelson, a
secretary, says she was particularly embarrassed by the videotaping
because she often changed out of her work clothes after she closed the
office for the day. Nelson complained and has hired an attorney, even
though her state has no statute specifically prohibiting such videotaping.
"Years ago, the law didn't recognize a wife could be raped by her
husband," says Nelson. "But that didn't mean wives weren't raped by their
husbands."
Employees may think their privacy is protected by the Fourth Amendment,
which protects against unreasonable searches and seizures. But courts have
ruled that the Constitution, which offers some protection to government
workers, doesn't apply to employees of private firms. And while some
states have passed privacy legislation, the protections are scattershot.
North Carolina, for example, prohibits the tapping of telephone lines, yet
allows employers to test for HIV in their annual physicals. Vermont
prohibits HIV testing as a condition of employment but has no law against
testing for genetic diseases. Few states have legislation to protect
workers from being secretly videotaped or from employers' reading their
E-mail.
Even so, workers have gained some new protections. Beginning next month,
the Fair Credit Reporting Act will require employers to get written
consent from job applicants before requesting their credit history. Just
last week, the United States Court of Appeals for the 10th Circuit in
Denver upheld a lower court's decision that said employers cannot, under
normal circumstances, force workers to disclose the prescription drugs
they take. Finally, President Clinton recently said he intends to offer
legislation that would forbid disclosure of genetic information to
employers and insurers. Several similar bills are already before Congress.
While workplace-privacy experts support the ban on genetic-information
disclosure, they fear that if such legislation passes, politicians will
then consider the entire issue resolved. And the far more common, yet less
dramatic, encroachments on worker privacy will continue.
-o-
Subscribe: mail majordomo@sekurity.org with "subscribe isn".
Today's ISN Sponsor: Repent Security Incorporated [www.repsec.com]
Received on Sun Sep 20 10:44:52 1998