Alegal/ethical issue relating to a work environment
Alegal/ethical issue relating to a current, previous, or potentialfuture work environment is workplace surveillance. It has becomecommon in several businesses, thereby prompting employees to askquestions about its legitimacy since they believe that it violatestheir personal privacy (Ball, 2012). Employers argue that workplacedisregards the `personal` aspect at the core of every privacy claim.They allege that workplace is ‘public’ in the context ofworkplace surveillance and consider employees’ call for workplaceprivacy to be illegitimate. Furthermore, studies indicate that legaldevelopments favor this argument (Bernstein, 2014). Other factorsthat form solid grounds for workplace surveillance include instanceswhen employees engage in cyberbullying, leak confidential informationof the organization, or participate in criminal activities at theworkplace and threaten the economic prosperity of the employer.Furthermore, most organizations have been encouraged to install andoperate surveillance systems since surveillance technology has becomemore implicit, diffused, and economical to implement (Introna, 2012).
Employeeshave considered workplace surveillance a breach to their right toprivacy however, there are no institutional and legalinfrastructures that support their claim. This is because the currentstate of affairs justifies the subordination of employees’interests and rights to employers’ interests. This makes employees’claim look unimportant and makes workplace surveillance appearlegitimate. This paper describes a business situation that presents alegal or ethical issue (workplace surveillance), analyzes ethicalconcerns raised, and describes two different ethical theories thatsupport different outcomes of the situation. It also describes amoral outlook that will bring about the best legal outcome for thebusiness, explains at least three of the relevant areas of law thathave been addressed, and gives the recommendation to improve theethical climate in an organization.
ADescription of a Business Situation That Presents a Legal and EthicalIssue
Workplacesurveillance is a business situation that presents a legal andethical issue. As a result of technological advancements, businessesand organizations are finding it easy and economical to install andmaintain surveillance systems. Therefore, this has led to theimplementation of workplace surveillance programs by severalemployers (Introna, 2012). Active and direct electronic surveillanceat the place of work can result in rigid technological control overregular work activities however, the oppressiveness of thisstrictness can also prompt forms of resistance. Employers install andoperate surveillance and monitoring systems at the workplace toprotect their investments from lost productivity and illegal actions(Saval, 2014). Most of them believe that the universality of theInternet has resulted in an increase in the number of employees whofrequently use it for purposes that are not work-related. Despite thefact that workplace monitoring allows employers to track theproductivity of their staff, maintain security and their safety, andkeep tabs on disclosure of classified company information, it raisespersonal privacy concerns and questions about its legality.
Thereare various alternatives when it comes to hardware and softwaremonitoring solutions. Usually, employers carry out surveillanceactivities electronically through a wide range of devices, frommotion detectors and security cameras to software programs, whichtrack online activities performed by employees (Roberts, 2012). Theycan use software solutions to log websites employees interact with,keystrokes, desktop screenshots, incoming and outgoing emails andchats, installation of software and much more. After being logged,these activities are presented in graphical reports that are easy toread. Employers can then be alerted if employees perform certainactions or if some are not meeting their targets. Companies also usevideo, audio, and telephone monitoring tools. In several states,organizations monitoring phone calls are required by the law tonotify participants of monitoring or recording of conversations. Thisis usually done by either putting a beep tone on the line or playinga recorded message.
Currently,the law has not clearly established the right of employees tolocation or workplace privacy (Singer, 2014). Proposals and attemptshave been made by various bodies to codify such a right, forinstance, the Location Privacy Protection Act of 2001 however, itwas certainly not passed into law. Essentially, no laws addressworkplace monitoring directly, therefore, employers are left with thegreat freedom to monitor their employees as part of the right tocontrol business roles like manufacturing line productivity orcustomer service. Legally, employees have limited recourse when itcomes to workplace surveillance (Smith, 2014). The ElectronicCommunications Privacy Act, which was passed in 1986 is the only lawthat proscribes unsanctioned interception of electroniccommunications like emails, is the most pertinent federal lawhowever, service providers are exempted from its provisions. Thisindemnity is usually interpreted to be inclusive of employers(Introna, 2012).
Businessesface the ethical challenge of whether employees should be granted theright to workplace privacy or not. Various ethical considerationsencourage companies to install and operate surveillance systems atwork, for example, the need to limit legal liability, stop companypolicies violations, avoid leaking of confidential information, andrecover lost vital communications. Ethically, employers shouldprovide guidelines on best practices while using company resources,especially when carrying out personal business at the place of work.Such instructions should be made available via company handbook.Indeed, the issue of workplace surveillance using CCTV cameras orsystems for monitoring communications raises issues concerningprivacy (Levy, 2014).
Analysisof Ethical Concerns Raised
Workplacesurveillance has raised ethical concerns. Employers argue that ifemployees are granted an absolute right to privacy in the place ofwork they do act in their interest and perhaps defraud theorganization, leak confidential information or fail to me theirtargets. Conversely, employees dispute that if employers are given anunrestricted right to workplace transparency, the latter may stripthem of self-determination and autonomy by making an incongruousjudgment that serves their interests only (Introna, 2012).
Froma legal and ethical point of view, there is a need for a framework,which can distribute employees’ right to privacy and employers’right to transparency in a manner that would be considered fair tothe parties involved. According to Rawls seminal work, "A Theoryof Justice" of 1971, there is a need for a justice frameworkthat propagates fairness in contrast to the principle ofutilitarianism, which states that actions are right if they favor themajority. The current state of affairs in organizations puts noconstraints upon the subordination of the interests of some people tothose of other people, provided the net result is favorable to some.This has allowed subordination to some extent as long as the benefitto those advantaged significant enough. Theory of justice, on theother hand, does not permit benefits to some people to justifydisadvantages to other people (Rawls, 2014).
Beyonddoubt, the restraint of workplace privacy for employers to securecomplete control over productive resources and achieve high levels ofproductivity follows utilitarian theory. This implies thatsubordination of employees’ interests to employers’ interestsshould be justified and makes employees’ claim to workplace privacylook inconsequential in the face of the companies’ economicprosperity. This doctrine makes workplace surveillance seemlegitimate and denies workers the right to workplace privacy (Mill,2012).
Thereare some instances whereby employers’ right to workplacetransparency forms reasonable grounds, which may justify suitablemeasures to restrain the workers’ right to privacy in theworkplace. Examples of these cases could include:
Where employees use social networking sites carelessly and release classified company information and damage the employers’ business reputation
Where the employer is a victim of an employee’s criminal offense
Where there is cyberbullying in the workplace, viz., when some individuals bully others on the internet and mobile devices, through texts, social networking sites, and email
Twodifferent ethical theories applicable to the situation to support atleast two different outcomes include Rawl’s Theory of Justice andUtilitarian Ethical Theory. Rawl’s Theory of Justice revolvesaround adapting two fundamental doctrines of justice that canguarantee a morally fair and just society (Rawls, 2014). It proposesjustice and fairness. In the context of workplace surveillance, thistheory would ensure there is a balance between employees’ right toprivacy and employers’ right to transparency. This approachrequires companies to explain to their employees the kind ofsurveillance systems they intend to install and operate, the reasonswhy, where, and when they will install them. It also requires them todescribe instances that will be considered a breach of company policyand how and when the surveillance will be done. This would ensurethat the employers achieve satisfactory economic results andemployees are protected from harassment and bullying at workplace. Itwould also ensure that surveillance of employees is transparent andnarrowly tailored in manner, time, and place unless when an employeeis subjected to an investigation by substantial proof of misconduct.Permitted intrusions would not be used in a manner that results in anenvironment of widespread surveillance and intimidation.
Conversely,Utilitarian Ethical Theory places the locus of a right or wrongaction on the outcome of choosing a given action over other measures.Per se, this transcends the space of one’s interests and takes theinterests of others into consideration (Mill, 2012). It is intendedto promote the capacity to achieve happiness for the majority.Therefore, it revolves around the ‘Greatest Happiness Principle.`This theory justifies the violation of the interests of some peoplefor the benefit of other people to achieve outcomes that arefavorable to the latter. In the issue of workplace surveillance, thistheory would justify the violation of employee’s right to personalprivacy and make monitoring of employees seem legitimate so thatemployers can achieve high levels of efficiency and productivity.Since this theory is not based on fairness and justice, there wouldbe an atmosphere of unprecedented and intrusive levels of pervasivesurveillance and monitoring of employees would not be transparent.Employee monitoring would also outstrip legitimate concerns ofemployers and become mere espionage and continuance of illegitimatebusiness interests.
AnEthical Outlook That Will Result in the Best Legal Outcome
Anethical perspective that will lead to the best legal outcome for thefirm is that in spite of employers having a legitimate interest inelectronic monitoring of employees to make sure higher levels ofproductivity and efficiency are achieved, it should be transparent toemployees. Furthermore, reasonable intrusions at the place of workshould not be used to intimidate employees or as a way of creatingpervasive surveillance. It is important for employers to explain toemployees the need for workplace monitoring and assure them that thesurveillance system would not be used to bully them since the lawprotects them from bullying and harassment in the workplace.
ThreeAreas of Law That Have Been Addressed
Thereare relevant areas of law that have been dealt with in this course,for example, constitutional law, contracts, and employment law.Furthermore, each area of law applies to workplace surveillance.Employment law is a wide area that encompasses all areas of therelationship between an employer and an employee except negotiationprocesses covered by labor law as well as collective bargaining. Itcomprises of several judicial decisions, administrative regulations,and state and Federal statutes. It also encompasses conventionalstandards of good employment practices (My Law Chamber, 2014).Employment law applies to the issue of workplace surveillance in thatit allows employers to monitor their employees in the place of work. Although, it requires companies to take the following matters intoaccount to uphold good employment practices and maintain goodemployer/employee relationship: Employers should carry outsurveillance only after they have notified their employees,inspection records should only be disclosed for legal purposes, andmonitoring systems should not be used to harass or bully employees.
Constitutionallaw is an area of the law that deals with how the constitution isinterpreted and implemented. It also includes relationships of majorarms of the government and rights of citizens as stipulated in theconstitution. This law is only applicable to the issue of workplacesurveillance since it requires employers to employers to respect theconstitutional rights of their employees, even when they are beingsurveilled in the place of work. Employers may violate theconstitutional rights of employees when they use surveillancefootages to harass or bully them or install hidden surveillancesystems in restricted areas such as changing rooms, or washrooms.Some employers would go to this extent because of selfish interestsand other illegal purposes. The law prohibits surveillance in suchareas.
Contractsrefer to the private law that has been formulated by an agreementbetween two or more parties. The obligations and rights of theparties are clearly set forth by the terms of the agreement, subjectto limits enacted by relevant decrees. This law applies to workplacesurveillance in that it requires employers carrying out workplacesurveillance to have proper employment contract provisions andworkplace policies dealing with workplace surveillance. They shouldensure that all prospective employees have been issued with theappropriate notice of workplace surveillance policy and they haveacknowledged receiving it. The employers should also ensure thatthese potential employees have clearly understood the information inthe policy before signing it. Both parties should also be aware thatthis policy is a contract and breaching it is subject to litigation.
Aproposal to reduce liability exposure and improve the moral climateor the overall ethics of the situation is the development of astructure that balances the employees’ right to workplace privacyand the employers’ right to workplace transparency. While employeeshave a valid expectation of discretion in the workplace, it isimportant for this right to be balanced with the employers’interests and right to run their business efficiently and most ofall, to protect themselves from any form of liability or detrimentthat may be caused by employees’ actions. Balancing these differentinterests and rights calls for taking a few principles intoconsideration, particularly, proportionality. The fact thatorganizations view a monitoring or surveillance activity as aconvenient way to serve their interests does not justify anyintrusion into employee’s privacy.
Employersshould provide employees with an accurate, readily accessible, andclear statement of policy concerning the internet and email use, aswell as social media use in the workplace. This report should clearlyoutline the degree to which the workers can use communicationequipment owned by the organization or personal mobile devices likesmartphones, tablets, or personal digital assistants for private orpersonal communications. Let`s say, the statement of policy may limitthe times and duration of use. The issues below should be addressedaccordingly and included in the plan:
Employersshould clearly explain to the employees the purposes and reasons forwhich monitoring or surveillance of communications use may be carriedout. For example, where an organization has allowed the employees touse its communications equipment for private purposes, the privatecommunications may perhaps be subjected to some level of surveillancemaybe to make sure virus checking is adequate. The organizationshould clearly describe to the employees the kind of supervisionmeasures it intends to undertake, for instance, what type ofmonitoring system it is going to install and operate and how and whenthis will be done (Owen Hodge Lawyers, 2017).
Theemployer should have set out enforcement measures in the statementpolicy to be used in the event of a violation of internal electroniccommunications use. Additionally, the organization should haveclearly set forth the opportunities granted to employees to react toviolations of policy. From a practical viewpoint, employers shouldimmediately inform employees of any harmful use of company electroniccommunications detected, unless important explanations are justifyingcontinued surveillance or monitoring. This can be done through pop-upwarning windows.
Installationand operation of CCTV at the place of work must be undertaken inagreement with data protection legislation requirements. Since CCTVinvades the privacy of the people taken in its images, employers musthave a genuine reason for installing this kind of surveillancesystem. Employers are required by the law to display the purpose ofusing this system in a prominent position. Undeniably, they may useCCTV system to monitor the workplace due to various reasonsalthough, they are required to use signage to let the employees knowof the cameras’ locations and to explain the reason for which theyare being used. According to the Data Protection Acts, in case anemployer informs their employees that the CCTV system is installed toprevent theft in the workplace, footages from the system cannot beused for other purposes, for example, recording the entry as well asthe exit of employees at the place of work (Introna, 2012).
Assurveillance technology becomes more diffused, less expensive, andsimpler to implement, most employers are introducing surveillancesystems such as CCTV, motion detectors, and communications monitoringsystems into the organizational processes. This has led to severalquestions regarding its legality since employees claim that itinfringes their right to privacy in the place of work. Employersargue that subordinating workers’ right to workplace privacy totheir right to transparency is justified. Furthermore, the presentinstitutional and legal infrastructure do not clearly state whetherdenying workers the right to privacy at the place of work is illegalor not. Some of the factors that have made workplace surveillanceseem legitimate include: Need to minimize cases whereby employeesdefraud the organization, leak classified company information, carryout cyber bullying on the internet through emails and social networksites, and instances where the employers have been victims ofemployees’ criminal activities. With the current state affairs, thesubordination of workers’ interests to employers’ interests isjustified, thereby, making employees’ claim to workplace privacylook frivolous in the face of the companies’ economic success. Toimprove the ethical climate of an organization, it is advisable todevelop a structure that balances the workers’ right to privacy inthe workplace and the employers’ right to transparency. It is alsoimperative for the companies to issue the employees with statementpolicies that stipulate rules governing the use of company equipment,explain to them why surveillance is being carried out in theworkplace, inform them when a breach of the policy has been noticed,and comply with data protection legislation requirements.
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