Chicago-Kent Law Review

Volume 72
Issue 1 Symposium on Generic Products Article 10
Liability

January 1996

Privacy in the Workplace

Kevin J. Conlon

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Kevin J. Conlon, Privacy in the Workplace, 72 Chi.-Kent L. Rev. 285 (1996).
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 PRIVACY IN THE WORKPLACE

KEVIN J. CONLON*

INTRODUCTION

The rapid growth of workplace monitoring and surveillance tech-

nology has far outpaced the development of laws that protect worker
privacy interests. While the monitoring of workers is hardly a new
phenomenon, modern technology has provided employers with more
advanced and effective means of monitoring their employees. As a
result, electronic monitoring of employees in the workplace has be-
come far more prevalent in recent years. Not only are employers col-
lecting more data on their employees,' they are collecting more kinds
of data. Technology now enables an employer to record every keys-
troke on the computer, every syllable uttered to a customer, and every
second spent away from one's work station. These enhanced monitor-
ing capabilities do not come without a price: they come at the expense
of employee privacy and health. Further, they do not yield the bene-
fits promised. Studies indicate that pervasive electronic monitoring in
the workplace actually reduces worker productivity. 2
As Professor Finkin correctly points out, our current legal system
is inadequate to deal with these issues. 3 Constitutional protections do
not extend into the workplace, exceptions to statutory limitations ex-
* Kevin J. Conlon is an attorney in private practice and serves as District Counsel for the
Communications Workers of America. He is a frequent lecturer and author on labor law
subjects.
1. According to Morton Bahr, president of the Communications Workers of America, pri-
vate employers are expanding the practice of electronically monitoring their employees. In his
testimony before the Subcommittee on Employment Productivity, he reported that the number
of monitoring systems sold to businesses soared by nearly 200% between 1985 and 1988 and that
sales have continued to rise. The Privacy for Consumers and Workers Act, 1991: Hearings on S.
516 Before the Subcomm. on Employment and Productivity of the Senate Comm. on Labor and
Human Resources, 102d Cong., 15 (1991) (statement of Morton Bahr, President, Communica-
tions Workers of America) [hereinafter CWA Testimony].
2. According to a report prepared for the U.S. Office of Technology Assessment, there is
currently no research evidence which demonstrates that electronic monitoring actually increases
individual worker production levels. See generally MICHAEL J. SMITH, PH.D., ET. AL., MOTIVA-
TIONAL, BEHAVIORAL AND PSYCHOLOGICAL IMPLICATIONS OF ELECTRONIC MONITORING OF
WORKER PERFORMANCE (1986) (Prepared for the Office of Technology Assessment, United
States Congress) [hereinafter WORKER PERFORMANCE STUDY]. To the contrary, in many cases
the negative effects of electronic monitoring (e.g., increased employee stress) have actually re-
sulted in a sharp decrease in employee productivity. See id.
3. See Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI-
KENT L. REV. 221 (1996).
 CHICAGO-KENT LAW REVIEW [Vol. 72:285

empt most employer monitoring, and the common law legitimizes

otherwise intrusive behavior if an employer can demonstrate a busi-
ness purpose. This Article first briefly outlines the law of privacy in
the workplace and then discusses some of the key issues posed by
electronic monitoring in that setting.

I. SUMMARY OF THE LAW

A. Federal Constitution
While the Constitution does not specifically recognize the right to
privacy, the Supreme Court has identified certain zones of privacy in
which government action is limited. 4 These zones of privacy only pro-
tect against intrusive state action. The Court has been reluctant to
find state action in the private sector,5 and consequently, private sec-
tor employees must look to statutory, case, and contract law for pro-
tection from intrusive employers.

B. State Constitutions
Several states have incorporated specific privacy guarantees into
their constitutions. 6 With the exception of California, these constitu-
tional provisions do not extend to employees in the private sector. 7 In
California, the courts have held that the state constitution prohibits all
intrusions into an individual's private matters unless the employer can
show a "compelling interest" that justifies the invasion. 8 The "com-
pelling interest" test has been applied to situations involving drug

4. See Griswold v. Connecticut, 381 U.S. 479 (1965) (The Griswold Court held that a Con-
necticut statute restricting the use of contraceptives by married couples was unconstitutional on
the ground that it impinged on matters "concem[ing] a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees." Id. at 485. The Court based
its decision on the First, Third, Fourth, Fifth, and Ninth Amendments. See id. at 484.); see also,
Roe v. Wade, 410 U.S. 113, (1973) (The Court recognized an individual's general right to hold
certain private matters away from public scrutiny. In Roe, the Court enumerated those areas of
personal autonomy which deserve constitutional protection and subsequent courts have strictly
limited the right to privacy to these enumerated categories.).
5. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
6. See, e.g., ALASKA CONsT. art. I, § 22; CAL. CONST. art. I, § 1; FLA. CONST. art. 1, § 23;
HAW. CONST. art. I, § 6; ILL. CONST. art. I, § 12; LA. CONST. art. 1, § 5: MoNT. CONST. art. II, § 9;
S.C. CONST. art. 1, § 10; WASH. CONST. art. I, § 7.
7. See, e.g., Bianco v. American Broad. Co., 470 F. Supp. 182, 186-87 (N.D. II1. 1979) (The
right to be secure against "unreasonable... invasions of privacy or interceptions of communica-
tions by eavesdropping devices or other means" as set forth in Article I, Section 6 of the Illinois
Constitution, is a limitation on governmental activity only.).
8. See Semore v. Pool, 266 Cal. Rptr. 280 (1990) (finding no compelling interest to justify
requiring an employee to take a "pupillary reaction test"); Wilkinson v. Times Mirror Corp., 264
Cal. Rptr. 194 (1989) (finding that an employer had a compelling interest in testing a job appli-
cant for drug use).
 1996] PRIVACY IN THE WORKPLACE

screening and psychological testing with favorable results.9 Califor-

nia's constitutional right to privacy has not been examined in the con-
text of electronic surveillance of employees, however, and it is
unlikely that the "compelling interest" test will provide much protec-
tion from overly intrusive employer supervision. Employers will un-
doubtedly assert a vast number of business purposes that will
legitimize their use of service quality observation technology, comput-
erized work-measurement devices, and video surveillance equipment.
The California courts will most likely find those purposes "compel-
ling" under the constitution. Thus, state constitution privacy clauses
are no more protective of worker privacy interests than the federal
Constitution.

C. Federal Statutes
The Electronic Communications Privacy Act of 1986 ("ECPA")
protects against the interception, disclosure, and intentional use of
wire and electronic communications by both private and public parties
absent prior judicial authorization. 10 The statute's protections apply
only if the interception is accomplished through the use of an "elec-
tronic, mechanical or other device."" Thus, an employer can listen to
an employee's conversation on an extension telephone without violat-
ing the statute. 12
The statute contains two sweeping exceptions relevant to the
workplace setting. The first is the prior consent exception which pro-
vides that the interception of oral, wire, or electronic communications
shall not be unlawful if one of the parties to the conversation has
given prior consent to the interception. 13 The "prior consent" excep-
tion has been interpreted narrowly in the employment context: con-
sent will rarely be implied 14 and cannot be given on behalf of the
9. See Luck v. Southern Pacific Transportation Co., 267 Cal. Rptr. 618 (1990) (upholding
the claim of a computer programmer who refused to take a urine test in a wrongful discharge
case); see also, Soroka v. Dayton-Hudson Corp., 1 Cal. Rptr. 2d 77 (1991) (The appellate court
reversed the lower court and held that the employer's interest in securing psychologically fit
applicants for important security positions was not compelling enough to justify asking highly
intrusive questions about the applicants' religion and sexual preferences on a job application.).
10. Pub. L. No. 90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2520 (1988)).
11. 18 U.S.C. § 2511(1)(a)-(b).
12. See Briggs v. American Air Filter Co., 630 F.2d 414, 420 (5th Cir. 1980) (finding that
"[i]t is in the ordinary course of business to listen in on an extension phone for at least as long as
the call involves the type of information he fears is being disclosed").
13. 18 U.S.C. § 2511(2)(d).
14. See Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992) (consent could not be implied
from the circumstances because no reasonable person would have consented to the taping of
conversations about their participation in a theft or their sexual activities); Watkins v. L.M.
 CHICAGO-KENT LAW REVIEW [Vol. 72:285

employee by the employer. 15 Generally speaking, however, consent is

expressly given in employment contracts as a condition of
employment.
The second major exception to the statute's protection is the
"business use exception."' 16 The business use exception effectively le-
galizes most workplace telephone monitoring by employers. The test
is whether the interception was made "in the ordinary course of busi-
ness."' 17 In applying the test, courts have focused on the equipment
used and the circumstances under which the monitoring took place.
Few limits have been placed on the type of equipment that can be
used' 8 and the courts have broadly interpreted the circumstances that
are considered to be "in the ordinary course of business." Employers
can monitor the phone lines to assure adequate customer service, 19
prevent unauthorized use of the phone lines, 20 or prevent disclosure of
confidential information. 21 Employers are limited in their ability to
intercept personal conversations, however, and they can listen only
long enough to determine that the conversation is personal in na-
ture. 22 Thus, the ECPA provides very little protection to the em-
ployee in the workplace.

Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983) (knowledge of the capability of monitoring alone
cannot be considered implied consent).
15. The language and legislative history of § 2511(2)(d) make it clear that consent can only
be given by one of the parties to the communication. See S. Rep. No. 90-1097 (1968), reprinted
in 1968 U.S.C.C.A.N. 2112, 2182 (citing United States v. Pasha, 332 F.2d 193 (7th Cir. 1964)).
16. 18 U.S.C. § 2510(5)(a)(i).
17. Id.
18. See, e.g., Deal, 980 F.2d at 1157 (finding that an automatic tape recorder that is not
connected to the phone line does not fall under the exception).
19. See James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979) (upholding the
routine monitoring of customer service representatives).
20. See Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (lth Cir. 1983) (finding that an
actual consent to a policy of monitoring sales calls was not consent to the monitoring of private
calls except to the extent necessary to determine their nature).
21. See Briggs v. American Air Filter Co., 630 F.2d 414, 420 (5th Cir. 1980) (The court
found that the employer had acted in the ordinary course of business when it monitored em-
ployee phone calls made to a competitor. The following facts influenced the court's decision: (1)
the plaintiff admitted that the call was of a business, rather than a personal nature; (2) the super-
visor's act of surveillance was limited in purpose and time; and (3) the surveillance was not part
of a general practice of secret monitoring.).
22. See Watkins, 704 F.2d at 584 (permitting an employer to listen to a personal call for a
time sufficient to determine the call's nature, but no longer).
 1996] PRIVACY IN THE WORKPLACE

D. State Statutes
Most states have enacted legislation prohibiting electronic moni-
toring and surveillance by private individuals. 23 The statutes generally
mirror their federal counterpart and include the prior consent and
business use exceptions. 24 In a handful of states, both parties to the
conversation must consent to the interception. 25 In all states, consent
can be express or implied.
In at least one state, the legislature amended the state anti-eaves-
dropping statute to allow more general telephone monitoring of em-
ployees.26 The statute would have permitted monitoring "for
educational, training or research purposes. '' 27 The statute so worded
would have given employers the right to monitor almost any phone
call for almost any reason. Fear of abuse prompted unions in the
state to campaign against the statute. The legislature responded by
amending the statute and limiting its applicability to "quality control
of marketing or opinion research or telephone solicitation. '28 From
the employee's perspective, state anti-eavesdropping statutes provide
very limited protection from overly intrusive monitoring practices.

E. Common Law
Since constitutional and statutory law provide limited privacy
protection to individuals at work, the discussion of worker privacy
rights has largely focused on common law privacy claims. The com-
mon law of privacy is comprised of four distinct causes of action: (1)
unreasonable intrusion into seclusion; (2) public disclosure of embar-

23. South Carolina is the only state without such legislation. See Kenneth A. Jenero &
Lynne D. Mapes-Riordan, Electronic Monitoring and the Elusive "Right to Privacy," 18 EM-
PLOYEE RELATIONS UJ.71, 94 (1992).
24. But see, Kansas, KAN. STAT. ANN. § 21-4001 (1995), and Rhode Island, R.I. GEN. LAWS
§ 11-35-21 (1994), whose statutes do not include a prior consent exception.
25. California, Delaware, Florida, Georgia, Illinois, Maryland, Massachusetts, Michigan,
Montana, New Hampshire, Pennsylvania, and Washington all require both parties' consent to
the monitoring. See CAL. PENAL CODE §§ 631(a), 632(a) (West 1996); DEL CODE ANN. tit. 11,
§ 1336(b) (1995); FLA. STAT. ch. 934.03(2)(d) (1995); GA. CODE ANN. § 16-11-66(a) (1996); 720
ILL. COMP. STAT. 5/14-2 (West 1993); MD. CODE ANN., Cts. & Jud. Proc. § 10-402(c)(3) (1995);
MASS. GEN. LAws ANN. ch. 272 § 99(B)(4) (West 1990); MICH. COMP. LAws ANN. § 750.539c
(West 1991); MONT.CODE ANN. § 45-8-213(c) (1995); N.H. REV. STAT. ANN. § 570-A:2 (1986);
18 PA. CONS. STAT. ANN. §§ 5703-04 (West 1995); WASH. REV. CODE ANN. § 9.73.030(1)(b)
(West 1988). Note, however, that many state courts have interpreted these statutory provisions
to only require one party's consent to the monitoring, despite the explicit statutory language to
the contrary. See e.g., People v. Beardsley, 503 N.E.2d 346, 350 (I11.App. Ct. 1986) (interpreting
the Illinois statute to require the consent of only one of the parties to the conversation).
26. See 720 ILL. COMP. STAT. ANN. 5/14-30) (West 1996).
27. Id,
28. 1996 Ill. Laws PA 89-452.
 CHICAGO-KENT LAW REVIEW [Vol. 72:285

rassing private facts; (3) public portrayal of an individual in a false

light; and (4) appropriation of another person's name or likeness. 29
This Section will focus on the first of these causes of action: intrusion
30
into seclusion.
An intrusion case requires a prima facie showing of three ele-
ments: (1) an intrusion; (2) into a private matter; (3) that is highly
offensive to a reasonable person.31 Intrusion claims are largely deter-
mined by the third element: the employee's reasonable expectation of
privacy and the offensiveness of the intrusion. In practice, courts will
first define the scope of an employee's reasonable expectation of pri-
vacy and then balance the employer's business interest against the em-
32
ployee's individual rights.
In the workplace setting, the employer defines an employee's rea-
sonable expectations of privacy by establishing office policy and pro-
cedure. Given the large number of legitimate business interests that
can be advanced through the use of electronic monitoring devices, it is
often difficult for an employee to establish a reasonable expectation of
privacy. 33 Further, because electronic surveillance technologies are
designed to be physically nonintrusive, employees have had difficulty
proving the highly offensive nature of electronic monitoring tech-
niques. 34 In practice, the common law intrusion into seclusion claim
provides only limited protection for worker privacy interests.

29. WILLIAM L. PROSSER, HANDBOOK OF THE LAW ON TORTS 802-18 (4th ed. 1976).
30. THE RESTATEMENT OF TORTS § 652B (1977), defines the tort of intrusion upon seclu-
sion as: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person."
31. See id.
32. See, e.g., Johnson v. Corporate Special Services, Inc., 602 So.2d 385, 386 (Ala. 1992)
(The court based its decision on whether the plaintiff should have anticipated an investigation
into his physical well-being after filing a worker's compensation claim.); Alabama Electric Co-
Operative v. Partridge, 225 So.2d 848, 851 (Ala. 1969) (finding that the plaintiff had a reduced
expectation of privacy after filing a personal injury claim and then balances that interest against
the employer's business interest in not paying a fraudulent personal injury claim).
33. Courts grant a great deal of deference to employer business interests, making it clear
that employees are not entitled to the same degree of privacy at work that they enjoy at home.
Employer interests play a clear role in defining what is "reasonable". Generally speaking, so
long as the monitoring is limited to job performance or related matters, courts will find that the
monitoring activity was not "highly offensive to a reasonable person." Some courts have even
read employer business interests to allow off-site monitoring of workers. See, e.g., Johnson v.
Corporate Special Services, Inc., 602 So.2d 385, 388 (Ala. 1992) (The court held that an em-
ployer's off-site surveillance of an employee who had filed a worker's compensation claim
against the employer did not violate the employee's privacy. The employer was found to have a
legitimate interest in determining the scope of the employee's injuries.).
34. Some would argue that electronic monitoring techniques are less intrusive than tradi-
tional monitoring techniques. For example, a hidden camera is less obtrusive than direct over-
sight by a supervisor. This argument, however, fails to recognize the pervasive and constant
 19961 PRIVACY IN THE WORKPLACE

II. ANALYSIS

Currently, an employer's right to engage in service quality obser-

vation, computerized work measurement, and video surveillance of
employees is relatively unrestricted. The employee enjoys a very nar-
row zone of privacy in the workplace. Professor Finkin correctly ar-
gues that the zone is too narrow. Professor Westin disagrees and
contends that while the use of electronic monitoring devices may pose
problems in the areas of fair work standards, employee dignity, and
employee health, privacy is not at issue. He feels that privacy-based
attacks on electronic monitoring in the workplace are invalid, and ar-
gues that they "lack[ ] public support, threaten[ ] societal interests in
quality work, and fundamentally misappl[y] privacy concepts. ' 35 The
balance of this Section will address these claims.

A. Public Support for Fair Employer Monitoring

After a careful examination of public opinion surveys on privacy
in the workplace, Professor Westin concludes that our legal system
accurately reflects the general public perception of what constitutes
reasonable and unreasonable expectations of privacy at work. He
writes: "On the whole, what we have written into law and judicial
decision, and what has not been put into law in the various areas of
workplace privacy is a solid, workable system that strikes the right
' 36
balances between privacy and other social interests.
There are several problems with this conclusion. First, as Profes-
sor Finkin explains, employees are largely unaware of the scope and
amount of electronic monitoring that actually takes place. According
to Morton Bahr, president of the Communications Workers of
America, companies spy on as many as 400 million telephone calls
each year. 37 A MacWorld survey revealed that 20 million Americans
may be subject to monitoring through their computers, and an esti-
mated 375,000 have had their e-mail files searched. Fewer than one-
third of employees utilizing electronic monitoring devices warn their
employees that such methods are in use. 38 These numbers are cause
for concern. The fact that ninety percent of all employees believe that

nature of electronic monitoring devices in the modem workplace which has a negative impact on
worker privacy interests.
35. Alan F. Westin, Privacy in the Workplace: How Well Does American Law Reflect Ameri-
can Values?, 72 Cm.-KErrr L. REV. 271 (1996).
36. Id. at 283.
37. See CWA Testimony, supra note 1 at 15.
38. Charles Piller, Bosses With X-Ray Eyes, MACWORLD, July 1993, at 123.
 CHICAGO-KENT LAW REVIEW [Vol. 72:285

their employer has never sought inappropriate personal information

indicates a lack of understanding of the pervasiveness of employer
monitoring, not a general satisfaction with current legal protections
for worker privacy interests.
A separate issue brought out in Westin's analysis is the problem
of notice. According to Westin, over ninety-three percent of the em-
ployees surveyed feel that "[p]rocedures for listening-in and standards
used to evaluate employee call-handling should be fully explained to
employees. '' 39 Recall that fewer than one-third of employers actually
warn employees that electronic surveillance is in use. The obvious
question, then, is whether knowing about the absence of notice would
have diminished the survey participants' overall satisfaction with cur-
rent legal protections for worker privacy interests. Given how highly
the survey participants seem to value notice, the answer is most likely
'"yes."
A final issue, touched upon in Westin's argument is the problem
of consent. Ninety-two percent of the respondents in Westin's survey
felt that "[e]mployees should be told when they are hired for these
jobs that supervisors will sometimes listen-in on business calls, so that
'40
employees can agree or not agree to work under these procedures.
This response indicates that the survey participants place a high value
on the opportunity to consent to monitoring. It is important to note
that the survey question fails to indicate that consent to monitoring is
almost always given under duress; employers generally require poten-
tial employees to consent to electronic monitoring as a pre-condition
to employment. This begs the question: Would the participants in
Westin's survey have been as comfortable with employee monitoring
techniques had they realized that consent to monitoring was not given
voluntarily? Clearly, the participants in Westin's survey were not
given enough information about actual electronic monitoring practices
to respond knowledgeably on the subject.

B. The Threat to Central Societal Interests in Quality Work

Professor Westin contends that privacy-based arguments against
the use of intrusive electronic monitoring devices pose a threat to
"central societal interests in quality work."' 41 In making this argu-
ment, Westin necessarily assumes that the electronic monitoring of

39. Westin, supra note 34, at 281 (emphasis added).

40. Id. (emphasis added).
41. Id. at 278.
1996] PRIVACY IN THE WORKPLACE

workers results in enhanced work quality. There is strong evidence

that the opposite is true. Studies have shown that the adversarial at-
mosphere created by monitoring undermines employee self-esteem
and dignity, which decreases job commitment and results in lower pro-
ductivity and competitiveness. 42 In addition to the productivity cost,
monitoring adversely affects customer service by overemphasizing
quantity of work at the expense of quality. The following anecdote
illustrates this point: A telephone operator generally handles 1100
calls in a 7.5 hour shift.43 The operator must complete each call in
twenty seconds or less, and the time in which it takes to complete the
call is monitored."4 If she fails to meet the time limit, she can be dis-
missed.45 A Catch-22 situation arises when she receives a call from a
customer with a speech impediment, hearing problem, learning handi-
cap, or language barrier. She must choose between preserving her job
and providing quality customer service. In one case, an operator re-
46
ceived a call from a customer who stated he was considering suicide.
The operator's manager willfully disconnected the call after fifteen
minutes because the operator was taking too long to complete the
call. 47 Clearly the real threat to work quality is not privacy-based op-
position to electronic monitoring in the workplace; it is the misuse of
electronic monitoring devices in the workplace.

C. FUNDAMENTAL MISAPPLICATION OF PRIVACY CONCEPTS

Professor Westin charges that privacy-based objections to elec-

tronic monitoring in the workplace are really disguised protests
against worker supervision. Such objections, he argues, "stretch[ ] the
concept of privacy beyond its rational limits. ' 48 Privacy, in his mind, is
a concept that has been exploited as "an emotionally-charged weapon
in the on-going power struggle between management and unions." 49
in making these statements, Westin fails to recognize an impor-
tant feature of electronic monitoring: its pervasive nature and the im-
pact that such has on worker privacy interests. Consequently, he does
not acknowledge that a system of total oversight intrudes upon
worker privacy interests because of its constant presence. The follow-
42. See WORKER PERFORMANCE STUDY, supra note 2, at 16-21.
43. See CWA Testimony, supra note 1, at 18.
44. See id.
45. See id. at 19.
46. See CWA Testimony, supra note 1, at 19.
47. See id.
48. Westin, supra note 35, at 282.
49. Id. at 277.
 CHICAGO-KENT LAW REVIEW (Vol. 72:285

ing quote from an telephone operator illustrates the degrading impact

of electronic monitoring in the workplace:
In our office, they turn on the blue light.., that is only supposed to
be on when someone is monitoring, but most days it is turned on at
8 a.m. and stays on all day. We did have three supervisors that do
nothing but monitor us all day. We now have a new supervisor in
our department, and they have put her on monitoring also.
I have been with Bell Company 29 years. [This] is the worst depart-
ment I have been in all my years with the company.
They use monitoring to see if they can find something to charge
against you. I find it to be dehumanizing, unhealthy and disgusting.
Through the years I have been appraised as more than satisfactory
and respected to do work without constant supervision.
All in our department feel as though we are in prison and we are
regarded as nothing more than criminals that must be guarded and
monitored on constantly as though we could not function on our
own. We are all adults, but we are made to feel like naughty
children.
I loved my job I had before. Now all I long for is the day 50I can
retire and never have to set foot back in that horrible place.
When every second at work is spent under the watchful, unblinking
eye of an electronic monitoring device, can a worker really be said to
have any privacy rights in the workplace? Professor Finkin would ar-
gue no. Constant and pervasive electronic monitoring effectively
eliminates the narrow zone of privacy that workers are accorded
under the law. Because our legal system fails to address the effects of
a program of total and constant worker oversight, Finkin argues per-
suasively for reform.

III. REFORMING THE SYSTEM

Thus far this Article has focused upon the inadequate protection
afforded by our current legal system to worker privacy interests. It is
clear that legal reform is necessary to guarantee that individual pri-
vacy interests are protected from overly intrusive electronic monitor-
ing devices. Because tort reform is a slow and unwieldy process,
change must come from the legislature. What follows is a list of the
reforms needed to protect individual privacy interests in the
workplace:

50. CWA Testimony, supra note 1, at 19.

19961 PRIVACY IN THE WORKPLACE

(1) There should be no monitoring in highly private areas

such as restrooms, locker rooms, and employee lounges.
Time spent away from one's work station can be monitored
in less invasive and less offensive ways.
(2) Monitoring should be limited to the workplace, and any
offsite monitoring should be prohibited. An employee
should not have to sacrifice his or her right to privacy outside
the workplace merely because he or she agreed to work for
an employer.
(3) Employees should have full access to any and all infor-
mation gathered through monitoring techniques. They
should also be given the right to refute or appeal the validity
of that information in a timely fashion.
(4) Continuous monitoring should be banned. Electronic
employee observation should be limited to a maximum of
two hours each day.
(5) All forms of secret monitoring should be banned. Em-
ployees should be given advance notice of the devices that
will be used to monitor their work, how that data will be
used, and the exact time and date that monitoring will take
place.
(6) Employees and customers should be put on notice when
telephonic monitoring is taking place through the use of a
"beep" tone, audible to both employee and consumer.
(7) Employers should be limited in the information that they
can gather: only information relevant to that job should be
collected.
(8) Monitoring must result in the attainment of some busi-
ness interest. It should not be enough to claim that monitor-
ing increases productivity or quality of performance: the
employer should be required to demonstrate that the goal is
met.

CONCLUSION

With the change in emphasis in our economy from manufacturing

to service, the workplace has been transformed into an electronic of-
fice. At the same time, the means by which management seeks to
monitor and control workers has undergone a dramatic change. Vis-
ual observation and daily production counts have been replaced by
 CHICAGO-KENT LAW REVIEW [Vol. 72:285

electronic monitoring devices. Secret monitoring devices have liter-

ally brought "Big Brother" into the office. Proponents of legislative
reform of workplace privacy laws believe that "the use of bugging de-
vices, employee monitoring computers and video cameras has turned
jobsites into detention centers where the rights of privacy are surren-
dered at the door."'' s The law has been slow to react to the insurgence
of monitoring technology in the workplace and employers have been
faced with relatively few legal restrictions on their use of this technol-
ogy. Professor Westin would argue that our legal system has struck
the correct balance between worker privacy interests and employer
business interests. The reality is, however, that the legal protection of
employee privacy interests has lagged far behind the promotion of
employer business interests. As we move towards the twenty-first
century, it is clear that electronic monitoring devices will play a major
role in the workplace. It is therefore essential that the evolution of
electronic monitoring technology be mirrored by the development of
laws designed to protect the privacy interests of workers.

51. "DON'T BUG ME:" CONSUMER AND WORKER ACTION Krr TO PROTECT WORKPLACE
PRIVACY 4 (prepared by the Communications Workers of America).
STUDENT NOTES AND COMMENTS