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Electronic Surveillance in the Workplace

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Electronic Surveillance of Employees

1. Explain where an employee can reasonably expect to have privacy in the workplace.
Generally, the courts don’t “ally” the employee’s cause when it comes to privacy intrusion in the workplace unless it was unreasonable, “…only if he had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data resources” Shulman 955 P.2d at 469.
To be qualified as unreasonable, the intrusion should involve invading another person’s solitude in a manner considered highly offensive or unauthorized, for example, the employee’s privacy was video monitored, so it has been physically invasive, such as a hidden camera in a locker room or a bathroom is unlawful.
To answer this question, an employee can reasonably expect to have privacy in the workplace in a locker room or a bathroom. Also, the Supreme Court of California recently held that:
“In an office or other workplace to which the general public does not have unfettered access employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions not be secretly videotaped by undercover television reports, even though conversations may not have been completely private from the participants’ coworkers.” Sanders v. American Broadcasting Co., Inc., 978 P.2d 67, 69 (cal.1999).

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 overheard, or an enclosed office, in which—when the door is closed—conversations 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.
The federal and state statutes and the common laws didn’t mention any difference between different types of workplace, the surveillance at work is still the same. The definition of intrusion does not depend on the space. It depends on the evaluation of the courts for the case as to whether or not the invasion of privacy was unreasonable and highly offensive to a reasonable person. To cite “Mars v. Marriott Corp., 830 F. Supp. 274, 283 (D. Md. 1992): (holding that there was an employee that was videotaped picking a lock on a desk drawer, the employee had no reasonable expectation of privacy in an “open office”)”. Therefore there should be no difference between and open-space at work and an enclosed office according to general law.

3. Explain if Herman’s need to know whether his salespersons are honest is a sufficient ground for utilizing electronic surveillance.
To determine whether or not a person is honest is sufficient enough reason for Herman to engage electronic surveillance. If he does not he wouldn’t realize if his salesperson is honest or not. The Electronic Surveillance Communications Privacy act 1986 (ECPA) allows employers to listen in on communications made in the “ordinary course of business”, meaning where business interests such as efficiency or legal liability are at stake. The only case where Herman may not be allowed to listen in on his employee’s conversations, according to the federal case law, is when he realizes the call is personal and he must hang up immediately, I cite: “Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983)”, unless the employees are told not to make personal calls from specified business phones. 4. Explain to what extent an employer can engage in electronic surveillance of employees.
In general, the employer can engage in electronic surveillance. Although there are few cases that an employer cannot cross some limits.
To define the limits that an employer can engage in electronic surveillance of employees, we have to define what the EPCA and the common law consider as an intrusion of privacy: “…unreasonable intrusion on the seclusion of another; appropriation of the other’s name or likeness; unreasonable publicity given to the other’s private life; or publicity that unreasonably places the other in a false light before the public. Restatement (Second) of Torts 652A (1977)”. When an employee can prove that there has been an intrusion and that it was intentional while he was expecting a reasonable expectation of privacy, and that the intrusion was in a manner considered highly offensive or unauthorized, such as a locker room or bathroom. That’s when the employer has reached the limits installed by the common law and the ECPA act. 5. Explain to what extent the inclusion of innocent, unaware third-parties in such surveillance determine whether it is legal.
When it happens that a third-party was subjected to electronic surveillance while he was interacting with an employee, he is considered in a public area. It is rare that the courts find that there is privacy in public no matter how private the public space may seem to be to the third-party. I cite “UNITED STATES OF AMERICA v. LAWRENCE MAYNARD No. 08-3030 Appeals from the United States District Court for the District of Columbia (No. 1:05-cr-00386-ESH-10) : Americans should expect no privacy while in public.” To summarize, any third-party should not expect any more privacy than an employee, in a public place.…...

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