E-mail workplace privacy issues in an information-and knowledge-based environment

E-mail workplace privacy issues in an information-and knowledge-based environment

Smith, Alan D

Presently, business is in the midst of a total transformation in the management of information flow in the decision– making process. This new management generation emphasizes the movement of information and virtually all forms of electronic surveillance and may provide the basis for a firm’s sustainable competitive advantage. By definition, strategic assets are “simultaneously valuable, rare, imperfectly irritable, and nonsubstitutable” (Michalisin, Smith, & Kline, 1997: 360). Businesses are extremely dependent on computers and the communication devices and services that promote this information flow. According to Stallings & Slyke (1998), the number of computers and terminals at work in the world totals over 100 million. Hence, to eliminate the error inherent with the human elements in data collection, some type of automatic identification and data capture system is necessary to ensure the level of accuracy needed to support managerial decision– making systems. According to Piggott (1997), E-commerce is a fairly new application of the Internet and World Wide Web, and its viability will depend on the development of globally accepted legal rules and regulations, as recognized by the U. S. President’s nine recommendations. An obvious key to the success of Internet commerce will lie in improved privacy protection regulations and trusted encryption software. Another key lies in the application of knowledge management and knowledge management systems (KMS), to ensure that the right information reaches the right people in the company, with the Web acting as the enabler. Knowledge management will generally employ a pull, rather than a push, strategy since knowledge workers will know what information is wanted and will actively search for it via KMS. A need to develop appropriate critical success factors for measuring the contribution of KMS to the enterprise will arise. As more companies downsize, KMS will become more critical to the company since people leaving the company will take the knowledge they had gained with them. Thus, websites, various types of information infrastructure, and scanning equipment provide not only a direct contact between the organization and its customers but also present an opportunity for innovation in both the delivery and selling of products. Many employers are insisting that these types of informational technologies, coupled with e-mail surveillance, are needed to monitor security issues concerning employees in the workplace. As illustrated in Table 1, the use of e-mails and associated informational technologies in the United States has greatly increased. One factor determining whether the organization will use its information infrastructure and associated technologies, including e-mail, for the electronic delivery and monitoring of its products, both in terms of its customers and employees, may be the firm’s pre-existing distribution structure and channel relationships.

“Some innovative organizations are attempting to provide customers greater value by using this technology within their value chain” (Palmer Ed Griffith, 1998:47). Companies can gain significant advantage by utilizing their information infrastructures for communication purposes. The information intensity of the product/service is a key element and may be reflected in how a business monitors its employees and measures associated performance for competitive advantage. Highly information– intensive products and services require a higher frequency of contact with customers to achieve effective communication. “The more information-intense the product, the more likely the website will utilize promotional activities to stimulate repeat consumer patronage of the site” (Palmer & Griffith, 1998: 47). Therefore, the Internet offers a method of distribution of information to a vast host of

potential users and, coupled with the associated automatic identification and data capture systems, can provide accurate and timely information as well. Related product and service quality has many definitions in modern business literature. As for service quality, for example, issues of delivery reliability and short response times are frequently cited. In terms of product quality, combinations of product design elements with durability and maintainability are common. As suggested by Finch (1999), the definition that captures the essence of quality is one that includes those characteristics that precisely match customer desires.

This occurs through a combination of product design efforts and attention to conformance to specifications, both linked to customer needs. The need for customer-based information has prompted a variety of collection approaches that have evolved into what has become known as customer involvement (Finch, 1999: 535).

Customer involvement is evident in business-to-business transactions, as these markets have formal dialogue between customers and suppliers, as evidenced by the business partnering that has become commonplace in most businesses. Communication is a vital element of successful customer relationship management (CRM), and the Internet allows companies to easily reach millions of customers around the world at a very low cost (Rao, Salam, & DosSantos, 1998). Hence, many employers have taken proactive definitions and strategies common in E-commerce and associated information technologies and adapted them to the task of gathering pertinent information concerning their employees in the workplace, as well as potential and active customers, for performance evaluation purposes.

The Nature of Workplace Electronic Surveillance

Misrepresentations of E-mail Privacy in the Workplace

E-mail usage is particularly prevalent in the workplace, as illustrated in Table 1. In 1996, for example, nine of ten employers with more than 1,000 employees had e-mail systems. Applying average usage estimates, such companies generate an enormous number of e-mail messages. For example, a company with 1,000 employees, each of whom sent eight e-mail messages per workday, would produce two million messages per year. Even smaller companies with e-mail systems can potentially produce a great number of messages. Accompanying the increasingly pervasive use of e-mail is the common misperception that e-mail is characterized as informal, confidential, and non-permanent. Unfortunately, e-mail may be obtained, examined, and saved by people unknown to the sender and forwarded for the world to see via the Internet. Moreover, e-mail and the related information infrastructure used to support it have a greater potential for permanence when compared to many other forms of communications, especially since both senders and recipients are able to save the messages onto disk or tape or to print hardcopies. Considering human nature, the more important and damaging the message, the more likely it will be saved for future reference. This scenario certainly is the norm in dealing with employee– workplace issues related to job performance and evaluations. Not surprisingly, due to the many misperceptions about security of the electronic media, attorneys have discovered that e-mail messages can provide particularly relevant and instructive evidence in litigation (Thumma & Jackson, 1999). As a result, as evidenced in recent years, the increase in the number of generally available judicial decisions in which e-mail has played a significant role in resolving the legal issues at hand has been dramatic.

Initial E-mail Litigation in the Workplace

The first generally available judicial opinion to mention e-mail appeared in the 1972 Supreme Court decision, United States v. Midwest Video Corp., in which the issue was the validity of a Federal Communications Commission (“FCC”) restriction on certain cable television systems. Although the more than 375 e– mail cases decided from 1997 through the first half of 1999 addressed a variety of issues in different subject matter areas, the issues involving e-mail in these cases can be basically categorized into six groups, according to Thumma & Jackson (1999).

1. employment issues

2. commercial law

3. procedural matters 4. personal jurisdiction issues

5. e-mail in the criminal law context

6. miscellaneous issues

The number of cases in each of these categories, except for the miscellaneous issues category, increased throughout the late 1990s. These early and mid– 1990s cases involving e-mail were accompanied by a large magnitude of articles describing various uses, pitfalls, and difficulties of e-mail in litigation. In many respects, the early and mid-1990s e-mail cases set the stage for the more common use of e-mail messages in current litigation. The e-mail cases decided by 1995 provided a good predictor for the explosion of e-mail cases during the late 1990s as well as the types of issues the courts would be asked to address in those cases (Simon, 1998). Of course, much of this explosion of e-mail litigation may simply be the direct result of the exponentially increased use of e– mail in business transactions and an overtly litigious society, which makes e-mails more of a target for potential litigation.

It is not just plaintiff employees who are using e-mail in litigation in the employment context. Surprisingly, employers are successfully defending against harassment claims by pointing to written and implemented corporate e-mail use policies (Western Union Int’l, Inc. v. FCC, 1976). For example, one court noted that the defendant employer had an established policy regarding the use of e– mail, had issued a memorandum so that employees were aware of the policy, and had two meetings with employees to discuss that policy. Such cases reinforce the need for a well-reasoned, written, published, implemented, and administered e-mail use and retention policy. Recognizing the ability of e-mail technology to determine whether and when a message is received, several courts considered e-mail to determine whether an individual or employer had notice of a policy or issue in the workplace. E-mail can be used to communicate effectively, quickly, and inexpensively with a large number of individuals simultaneously (Thumma & Jackson, 1999). An employer in Western Union Int’l, Inc. v. FCC defending against racial discrimination, claimed that all employees had equal access to job openings because the employer sent e-mail notices for job openings to all employees. Finally, in several cases in the late 1990s, employers offered e-mail to demonstrate that employment decisions were proper and justified (Jenkins, 1997; Lowery v. Circuit City Stores, Inc., 1998).

Controversies Related to Electronic Surveillance in the Workplace

The concept of electronic surveillance in the workplace has generated much controversy in the current press, as demonstrated by the court cases previously discussed. Management of people and processes has allowed more measurement of the workplace in areas such as time spent on each sales call, time spent per client on telephone conversations, number of incoming and outgoing e-mails, and the types of websites visited that are job related. The same information technology that allows efficiencies of scale is available to measure process and work flows through a business. As this process develops and evolves over time, it must be noted that the concepts of personal rights of privacy in the workplace and dealing with E– commerce are still in their infancy stages. As suggested by Vogel (2000),

While the Constitution dictates that police and other government agents almost always need a warrant to search a home or listen in on a phone conversation, the workplace is different. It’s the domain of bosses and managers. They literally own the office, the phone, the computer, and, in a sense, you, the employee. And they can do just about anything they want as long as it’s not done in a discriminatory manner (1).

As suggested by Vogel, the flows of communication within the office or workplace environment are not under the protection of unlawful search and seizure laws concerning personal privacy issues. Therefore, the real dilemma in dealing with issues of electronic surveillance in the workplace may be how best to use this emerging technology to improve and monitor employee behavior while protecting employees from employers who cross the line into the realm of invasion of personal privacy. This problem is extremely complicated when a sizable portion of the workforce is made up of the knowledge worker, whose intellectual assets are fostered through open lines of communication in order to foster creativity and risk without fear of workplace intimidation.

Recent Fears of Workplace Electronic Intimidation

As the job market blossomed in the 1980s through the late 1990s, the unemployment rate dropped dramatically. Many businesses found the need to weed through the rapid hiring process by reliance on devices, like psychological tests, to determine if employees were hard-working, loyal, and not prone to fraud or thievery. While a 1986 amendment to the Federal Wiretapping Act strictly prohibits employers from directly eavesdropping on employees’ personal telephone calls, business calls made on business time are not protected. Unfortunately, no real protection from the use of hidden and video cameras to monitor workers is available. Unfortunately, few states have any laws restricting an employer from spying on his or her employees. The newness of E– commerce and the sheer openness of the Internet have left this issue of privacy almost totally unprotected and unaddressed.

Surprisingly, at a time when workplace privacy issues are receiving more publicity, many companies are competing openly to develop loyalty among their workers, especially knowledge workers. “At many companies, the human factor-employees’ knowledge, skill, and ability to innovate and serve customers– has overtaken the bricks-andmortar assets of the Industrial Age as the biggest driver of profit” (Companies are finding… 2000: 20). Thus, employers are developing strategies of investments in intangibles that motivate and attract talented people. The end results of these investments are reduced employee turnover rates, more satisfied employees and customers, and, hopefully, sustainable competitive advantages. Obviously, workplace surveillance and privacy issues are important intangibles that need to be addressed in order to improve employee loyalty. It is extremely difficult to imagine any employee’s goodwill evolving from an atmosphere of mistrust of the management-employee interrelationship when the fear of invasion of workplace privacy is a major issue. Because no one really enjoys being spied upon, workplace privacy issues may become a more mainstream issue in employment practices.

According to Vogel (2000), the misuses of workplace privacy have not been missed by the American public. The vast majority of U. S. citizens do not believe employers should be able to listen in on phone conversations (95 percent), should not have the power to check the credit history of job applicants (67 percent), and should not be able to scan work areas with video cameras (56 percent). However, the reality of the workforce may be far from the ideal for which they may hope. Although a number of agencies are concerned with the quality of workplace conditions including privacy issues, such as ACLU’s Campaign for Fairness in the Workplace, the ultimate protector of workplace privacy may rest on the employees’ shoulders through such activities as keeping employee e-mail and phone conversations private by waiting to do personal matters outside the office or workplace environment. Employees should also not assume that all superiors respect individual rights in the workplace. Although some successful lawsuits have been brought by employees who feel they were secretly videotaped or spied upon aggressively by their employers, most employees are concerned with job security and the enhancement of the workplace, and may feel that complaining about workplace privacy issues will jeopardize their chances of promotion and job retention. Unfortunately, the pace of change in electronic surveillance and Internet-related technologies are such that federal, state, and local governments cannot write and approve reasonable laws fast enough. The emphasis is on the need to improve the efficiency of E-commerce and related technologies. A study governing cyberspace by the American Bar Association cited Thomas Varntaian, chair of the ABA Global Cyberspace Jurisdiction Project: “The study underscored the limited ability that any one state or nation may have in bringing greater certainty to Cyberspace and thus the need for a multinational commission that could work with governments to establish rules” (Governing Cyberspace, 2000).

The Concept of Information Privacy in an Electronic Age

The Need to Establish Boundaries

With the advent of information technology and the widespread use of the Internet, the concept of informational privacy (especially concerning personal issues in the workplace) has been increasingly difficult to define. Stone, Giardner, Gueutal, and McClure (1983) have suggested that information privacy can be defined as the individual’s ability to personally control information about him or herself. This ability to control personally sensitive and potentially damaging information has been referred to as one of the most ethical issues of the information age by Mason (1986), Smith (1994), Equifax (1990, 1992, 1993), and Katz and Tassore (1990). The concept of consumer sensitive information and related privacy issues has been raised as an increasingly potential threat to privacy (Equifax, 1992; Smith, Milberg, & Burke, 1996). Thus, personal privacy will continue to be a “hot topic” for a considerable time to come and will be compounded with the advent of increasing technology and depersonalization of the workplace, coupled with faster communications and growing populations. Hence, privacy issues are part of a core belief by consumers and employers that personal control in establishing boundaries of personal space and dignity may have been lost. The ever– increasing presence of electronic surveillance runs counter to the need to establish an atmosphere of a personalized workplace environment that is necessary to foster the types of creative web– building that knowledge workers need in order to contribute successfully to the firm.

A drive, especially in the U. S., has begun to develop safeguards against information privacy exposures from both domestic and international sources (Cespedes & Smith, 1993; Culnam, 1993). As organizations expand their internal and external databases to capture more information, including sensitive data about their employees and customers, information systems managers should be aware of privacy issues that may occur and should understand that they may be held accountable for potential privacy violations (Straub & Collins, 1990). For example, doubleclick.com, which has revealed its potential plan of using “cookies” as a method of capturing potentially private and sensitive information concerning purchases over traditional E– commerce sites in order to direct banner advertising that is tailor– made to fit consumer profiles, has agreed, in principle, to refrain from such a practice. Unfortunately, laws do not protect consumers from such practices if new economy companies, such as doubleclick. com, decide to put into practice more aggressive customer profiling. Doubleclick.com has voluntarily decided not to follow this aggressive approach to gather advertising dollars although it could still proceed since the practice is currently legal. Certainly, no legal protection of employees that would prevent employers from using related technologies to gather job-related performance measures without the employees’ knowledge currently exists. In fact, no safeguards are in place to protect against non-job related characteristics such as drug testing, eating habits, genetic predisposition to diseases, or marital status, to name a few. Vogel (2000) noted that up to 81 percent of American firms routinely test for the presence of certain drugs. Vogel also noted a case in which a woman was fired because the company discovered that her mother had Huntington’s disease. It was obvious that the company did not want to incur the potentially high cost of medical insurance even though the employee may not even have the gene that causes Huntington’s disease. It is the simple fact that bio-scanning for disease, genetic engineering research, and the popularity of using DNA evidence are on the rise that gives many employees the fear that genetic testing may eventually become a standard practice in selecting and firing employees as drug testing is now.

Unfortunately, just as global industries and their regulatory authorities have yet to reach agreement about how laws should be applied in financial products and services in an electronic environment such as E– commerce, the uncertainty about what constitutes a violation of workplace privacy is great. The resistance of employer advocacy groups to any restriction of an employer’s ability to monitor employees in the workplace is strong. For example, in an article concerning California’s efforts to enact an e-mail privacy law, resistance was considerable due to the perceived cost of implementing the proposed bill’s notice provisions (Fridman, 1999). According to the provisions of Senate Bill SB1016 written by State Senator Debra Bowen (D-Redondo Beach), Employers would not only be compelled to inform employees of their policy of monitoring employee e-mail messages, employees would be required to sign-either physically or electronically-their acknowledgement of actually having received notice of this policy (Fridman, 1999: 1).

Although according to Newsbytes News Network, Senator Bowen acknowledged that the bill was passed in the California State Senate by a unanimous, bipartisan vote and over– whelmingly supported in the State Assembly, it was still opposed by various employer advocacy groups (Fridman, 1999). The bill protects employees by notifying them of what information is routinely collected by their employers, such as e-mails, sites visited on the Internet, and which employee sites and files are password protected. The new law would specifically prohibit employers from secretly monitoring employee e-mail and computers and require employers to create and distribute to all employees copies of the companies’ workplace privacy and electronic monitoring policies and practices. In addition, the new law would require employees to read and sign, either electronically or physically, that they understood and acknowledged receipt of companies’ policies. More importantly, the new law gives employees the right to access personal electronic data collected through the employer’s monitoring efforts and gives the employee the right to dispute or delete inaccurate data. Although the bill provides misdemeanor criminal fines for employers who secretly monitor employees without first informing them of their policies, it does not prevent employers from openly monitoring employees in the workplace. The new law also does not define what information is under the sole ownership of the individual and/or company as well as what constitutes personal and/or company time and what is under strict privacy on the part of the employee.

Impacts of Specific Court Cases on Workplace Privacy Issues Associated with E-mail Transactions

Impacts of the Smyth v. Pillsbury Co. case. One of the most recent federal court cases to squarely address whether an employer’s monitoring of an employee’s e-mail communications improperly intrudes upon an employee’s right of privacy was the United States District Court for the Eastern District of Pennsylvania in Smyth v. Pillsbury Go. (1996). This case was especially significant because it was the first federal decision to hold that a private sector, at-will employee has no right of privacy in the contents of his or her e-mail when it is sent over an employer’s e-mail system (Dixon, 1997). This case is a classic example of the extent to which an employee may rely upon common law protection to safeguard his/her privacy in the workplace in terms of electronic communications. The basic question of the case was to decide whether the discharge or discipline of an employee on the basis of an intercepted e-mail message interferes with an employee’s right of privacy. According to Dixon, the case deals with the concept “concerning the right of privacy, [and] essentially depends on societal notions about the degree of personal autonomy an individual should have when he or she is in the workplace or is using an employer’s equipment” (1997: 1). The determination in this case, that employees should have no expectation of privacy in the contents of their e-mail communications in an employer’s network, is clearly erroneous, according to Dixon. Specifically, Pillsbury repeatedly had informed its employees that their e-mail communications would remain confidential and would not be used as a basis for reprimand or dismissal, but Pillsbury intercepted very negative comments about the company that were deemed threatening in nature by management. The court rejected Smyth’s arguments that the company violated his employer– sponsored privacy rights.

Although the holding of Smyth is sweeping, it is doubtful that its application should be. The Smyth holding is based on several fundamentally flawed interpretations of privacy law and mistaken findings about computer communications technology (Dixon, 1997: 2).

The end result of Smyth’s determinations, according to Dixon, is that it stripped all e-mail communication, a fortiori, of privacy protection without regard to the technology used to transmit e-mail or the employee’s subjective expectations of privacy.

Privacy issues involving e-mail and employer-employee interactions. In terms of specific employment cases dealing with workplace privacy issues revolving around e-mail and employer-employee interactions, several are noteworthy, as demonstrated by the recent research efforts of Thumma and Jackson (1999). Disgruntled employees have discovered the force with which e-mail can be used in litigation to prove impermissible and actionable employment practices. A recent case involved a trespass to chattels claim in which the plaintiff company alleged that the defendant sent unsolicited e-mail messages regarding the plaintiff’s employment practices to company employees on the company’s proprietary computer system (Intel Corp. v. Hamidi, 1999). The defendant apparently refused the company’s request to stop and “employed surreptitious means to circumvent [the company’s] efforts to block entry of [the defendant’s] messages into [the company’s] system.” In granting the plaintiffs request for a preliminary injunction against further purported invasion of its e-mail system, the court found that the defendant’s unwelcome e-mail was not constitutionally protected speech. Predictably, numerous cases considered allegedly harassing e-mail messages, which were sometimes graphic (McNeel v. Public Serv. Co., 1997), physically threatening (Brill v. Lante Corp., 1997), or retaliatory (Smith v. Department of Hous. & Urban Dev., 1999). Plaintiffs may have offered evidence of purported jokes sent by e-mail to provide the basis for discrimination claims. Not only did shocking e-mail messages provide the underlying basis for discrimination claims, but litigants also offered potentially innocuous e-mail messages to support their discrimination claims (Brill v. Lante Corp., 1997). Although the court rejected the plaintiff’s claim, finding that the e-mail did “not reflect a discriminatory attitude” (Ellison v. Premier Salons Int’l, Inc., 1997), the employer was forced to incur the cost (and perhaps the embarrassment) of defending the e-mail in court. Apart from deciding issues based on the content of e-mail, courts have suggested that the frequency or number of e-mail messages sent may provide the basis for a harassment claim. One court hypothesized that a supervisor who sends a large number of annoying, but not otherwise improper, e-mail messages could provide evidence of a hostile work environment allegation (Griswold v. Fresenius USA, Inc., 1997).

E-mail technology-An essential assessment tool in the workplace. Cases involving e– mail from the late 1990s also show that e-mail technology is becoming essential in the workplace and that employers are stressing the importance of using e-mail. One court upheld an employer’s termination decision, reasoning that an employee had a “duty to check her e-mail every day,” but that she failed to do so in a timely manner (Farmer v. Continental Ins. Co., 1997). Several cases addressed discrimination or retaliation allegations based, in part, on a claim that an employer had treated the plaintiff differently from other similarly situated employees with regard to e-mail use policies (Patel v. Allstate Ins. Co., 1997). In a case in which an employer required its employees to use e-mail at work, a court struggled with a disability discrimination claim based on an allegation that the plaintiff’s vision impairment prevented her from using e-mail. On appeal, a divided court reversed a verdict for the plaintiff on a reasonable accommodation claim, but affirmed a verdict for the plaintiff on her claim of differential treatment because of her disability (Cathcart v. Flagstar Corp., 1998). Another court considered a race discrimination and harassment claim in which the plaintiff alleged that the “defendants erased electronic mail files” (Swanson v. Civil Air Patrol, 1998).

With increasing frequency, employers are successfully defending against harassment claims by pointing to written and implemented corporate e-mail use policies. For example, one court noted that the defendant employer had an established policy regarding the use of e-mail, had issued a memorandum so that employees were aware of the policy, and held two meetings with employees to discuss that policy (Schwenn v. Anheuser– Busch, Inc., 1998). Such cases reinforce the need for a well– reasoned, written, published, implemented, and administered e-mail use and retention policy. Recognizing the ability of e-mail technology to determine whether and when a message is received, several courts considered e-mail to determine whether an individual or employer had notice of a policy or issue in the workplace (Hash & Ibrahim, 1996). In general, as previously demonstrated, e-mail can be used to communicate effectively, quickly, and inexpensively with a large number of individuals simultaneously. Mass communication of a series of notices for job openings to all employees or other job-related information is well within the capabilities of an e-mail system. Finally, in several cases in the late 1990s, employers offered e-mail to demonstrate that employment decisions were proper and justified (Lowery v. Circuit City Stores, Inc., 1998).

Private versus public workers’ expectations of workplace privacy. In the classic case, O’Connor v. Ortega (1987), the Supreme Court first addressed the Fourth Amendment’s applicability to government employees in the context of a government employer’s manual search of the contents of a public employee’s office and held that the employees could have a reasonable privacy expectation at work (480 U. S. at 715-18). Thus, the Court stated that the existence of reasonable expectations of privacy in the workplace must be decided on a case-by– case basis and must depend on “the operational realities of the workplace” such as “actual office practices” and “legitimate regulation” (715-718). It is important to consider the reasons for accessing information or monitoring communications of employees. In terms of the United States Armed Forces, for example, the need to provide protection from cyber attacks and personal misuse of potentially confidential and secure information is well– documented. The greatest counter measures are, of course, education and professional network management through proper training. Although the Fourth Amendment to the Constitution guarantees a person will be protected against unreasonable government searches and seizures, not all privacy interests are constitutionally protected. The important questions are whether an expectation of privacy is protected by the Fourth Amendment, and whether society as a whole recognizes it as being reasonable. An example from a court decision concerning the Armed Forces illustrates these concepts for public employees by specifically addressing whether the originator of an e-mail message has a reasonable expectation of privacy in United States v. Maxwell (1996). The court in this case found that the originator of an e-mail transmitted on a non– government and private communications network had a reasonable expectation of privacy that police would not intercept the message without a warrant based on probable clause. The court also realized that the reasonableness of an originator’s expectation depended in large part on the type of e-mail involved and the intended recipient. Hence, the most important issue, according to Coacher (1999), is that “we must consider what steps are necessary to protect the information contained on our computers from unlawful intrusion and review” (1). Unfortunately, the same constitutional privacy notions for private employers do not exist, as was previously documented. This situation, in effect, leaves the majority of American employees with little or no protection for their reasonable expectations of privacy (Wilborn, 1998).

Information Privacy Needs of Knowledge Workers

Treating Knowledge Workers Differently from Non-knowledge Workers from an Electronic Surveillance Perspective

Relatively early, Fernberg (1985) recognized the need for businesses to adjust their office surroundings to create an appropriate environment for their ever-growing population of knowledge workers, especially in the area of privacy. By 1990, according to Fernberg, up to 40 million American workers, or half of the workforce, would be using video display terminals in their daily work, and most of them would be knowledge workers. Many experts believe that worker comfort and flexible workspace can improve worker productivity because they enhance feelings of well being and control over the environment. Ergonomic considerations result in an environment in which lighting, acoustics, furnishings, privacy, equipment, and placement interact. The actual investment in ergonomic furnishings relative to the amount of revenue workers generated is only five percent of the total cost of productivity. Chair and keyboard height may be the most important elements in the office. Brett Starkweather of Viking Acoustical Corp., thinks the relationship between task and the ability to adjust is the key to productivity (Fernberg, 1985). Flexible components, an uncluttered workspace, and a sense of work-place freedom are central to creativity. Designers and manufacturers disagree over whether they or employers should be responsible for worker training in adjustable furnishings.

Knowledge Worker’s Changing Environmental Requirements

Pearce (1998) also raises several interesting issues concerning the environment for knowledge workers, both in terms of cost and utilization of the various media available for communication in today’s high technology environment, especially in establishing the need for communications among knowledge workers. The new forms of media, which are designed to be cost efficient and more effective than traditional telephone calls and overseas plane trips, are running in conflict with traditional and authentic oral communication. Although the number of messages received and sent daily via voice mail and e-mail (between 17 to 70 per person) is impressive, there “seems to be a general agreement that some messages just do not lend themselves to technology” (Pearce, 1998: 1-8). As stated by Pearce (1998), “When trust is needed to enhance performance, there is no substitute for real– time and live human voice” (2). Research performed by Mehrabian and de Wetter (1987) and others has pointed to the fact that little of judgment and human communication are based on words, but the vast majority is based on voice quality, both in tone and inflection, as well as other physical cues.

A survey commissioned by SAS Institute shows Canadian organizations, for example, are well on their way to integrating data warehousing systems into mission-critical applications. The most important feature of such systems is not storage itself but so-called business intelligence tools that take data from operational systems into usable structure for knowledge workers (Williamson, 1996). Knowledge workers are considered key partners in the new economy, and their workplace requirements are rapidly becoming major concerns for management. In general, Pearce (1998) states, “We don’t listen to content. We comprehend content, but we listen to people. When content is the issue, a memo will suffice. Much of oral communication is about being heard, not about understanding content” (2). If a firm is trying to develop and transform information into a competitive advantage, a sense of loyalty is needed, not just issues of content. Probably, as suggested by Pearce (1998), the only product advantage that is sustainable is a major leap. Since competitors can copy technology and product functions quickly, the “premium is on fast upgrades and quantum breakthroughs” (3). The generation of loyalty will not come from e-mail and voice mail that merely emphasize content knowledge. Leadership to create an environment of conviction and passion is largely based, according to Pearce (1998), on the quality of oral communication. Leadership must also incorporate respect of personal and informational privacy on the part of the employer.

The Importance of Human Interaction and Respect in Dealing with Knowledge Workers: A Case for the Professional Intellect

Managers have traditionally found it difficult to communicate emotional and moral values of fairness, empathy, responsiveness, teamwork, trustworthiness, and striving for excellence, as illustrated by the founder of Charles Schwab, a leader in the financial services industry. Since the voice is as distinctive as a fingerprint, it carries an “unedited version of what is inside of us” (Pearce, 1998: 5). Meaning and trust, coupled with a sense of commitment, can only be communicated person-to-person and through oral communication, not by e-mail messages.

The voice is an ultimate expression of the meaning and power of the spirit to communicate company values. Personal and authentic oral communication is essential to developing trust and a sense of loyalty, which develops people for sustainable competitive advantage. It appears that human oral communication, once believed commonplace, may be a candidate for a strategic asset, as defined by the resource-based view of the firm.

The article, “Managing Professional Intellect: Making the Most of the Best” by Quinn, Anderson, and Finkelstein (1996), is yet another thought-provoking article suggesting that “the success of a corporation lies more in its intellectual and systems capabilities than in its physical assets” (71). The traditional method of management of human capital, creativity, innovation, and the learning culture within an organization has long over-shadowed the management of the professional intellect. The professional intellect of an organization operates on the following four levels (in increasing importance), according to Quinn et al. (1996).

1. Cognitive knowledge or basic mastery of a professional discipline

2. Advanced skills or the ability to translate theory into effective execution or practice

3. Systems understanding or the deep knowledge of the cause and effect relationships underlying the professional discipline

4. Self-motivated creativity or the motivation and adaptability for success

The interaction of these factors allows nurturing organizations the ability to “simultaneously thrive in the face of today’s rapid changes and [to] renew their cognitive knowledge, advanced skills, and systems understanding in order to compete in the next wave of advances” (Quinn et al., 1996: 72). The authors noted that the professional intellect within an organization frequently becomes isolated inside the organization. It is a fact that the existence of a large organizational culture creates conflict between groups such as marketing or manufacturing with research and development. Thus, at the heart of an effective professional organization, managing and developing the professional intellect are critical for sustained competitive advantage. The authors suggested the following successful “coaching” practices to ensure the development and growth of the professional intellect.

1. Recruit the best

2. Force intensive early development

3. Constantly increase professional challenges

4. Evaluate and weed

As the authors point out, “heavy internal competition and frequent performance appraisal and feedback are common in outstanding organizations” (74). Organizations constantly need to leverage their professional intellect for sustainable competitive advantage. This leveraging of professional intelligence can be accomplished by capturing knowledge in systems and software, overcoming reluctance to share information, and organizing reinvestment in intellectual capital.

Unfortunately, to accomplish these important characteristics and create value within the organization, organizations may have to abandon their familiar hierarchical structures and reorganize in patterns that best suit their professional intellect. By creating intellectual webs and connectivity within the organization, networking, culture, and incentives for sharing are the keys to success with these outstanding organizations. How the various professional intellectual groups interact and communicate within the organization is as critical as the actual knowledge that is created and transferred. According to Schrage (1999),

What people need-what would help make knowledge workers far more creative and productive-are tools that give them the chance to be caught in the act of thinking out loud. They need to see what they-and others-have said. I know I do. Every day, knowledge workers worldwide brainstorm over phone lines and in meetings, yet their very best comments are literally vanishing into thin air. Who hasn’t hung up after a 40– minute phone call crackling with ideas to the unhappy realization that you can barely even remember the top two (324)?

It is obvious that knowledge workers need relatively great degrees of freedom to network and develop chains of thought into coherent and workable ideas and solutions.

If we could quickly, easily, and cheaply look at transcripts of phone conversations with colleagues or at design reviews with clients within minutes of their conclusion-and then be able to capture and highlight the comments worth preserving or sending on or enhancing or plugging directly into a presentation or report-white-collar work as we know it would be transformed. To be able to “interrogate” via computer the transcripts of one’s workday interactions-to spot which ideas should be clustered together and what comments merit further development-would fundamentally change how we communicate with colleagues and clients (Schrage, 1999: 324).

Knowledge workers must develop the confidence that e-mails are communicated freely, without fear of censorship and retaliation from their employers, within their intellectual web-sharing network.

Hence, it is becoming increasingly apparent that an organization should be a catalyst for such networking instead of creating barriers for its development. Only through sharing of information and openness of the company’s electronic surveillance policy can the development of the professional intellect within the organization sustain strategic advantage in a meaningful way. The typical practice in the past for scientists and engineers has been to eventually move out of the primarily technical job for which they were initially hired and move into a managerial/ administrative position. However, as stated by Roberts and Biddle (1994), this “transition is not necessarily seen as positive by those who make it … it poses significant human resource management problems” (561) and may result in managerial problems in the immediate future. Of course, many technically trained people feel that the managerial track is the only one left open to them for upward mobility. Unfortunately, the personal orientation toward meeting technical and professional objectives, rather than meeting organizational goals, may result in the belief that “those who move to management lack the skills necessary to be effective managers” (Roberts & Biddle, 1994: 562). This situation may result in poor managers staying with the organization and good technical people leaving the organization. However, due to the technical nature of the firm’s services and products and the need for monitoring and motivation of technical professionals, firms may want to create a technical environment in which these professionals monitor themselves. Of course, it is extremely difficult to shift paradigms in a technically-oriented environment.

How Successful Firms Treat Their Knowledge Workers

The research by Roberts and Biddle (1994) used the human resources files of a company employing a large number of knowledge workers, namely scientists and engineers, to study the managerial promotional practices. The four basic questions researched were

1. Who gets promoted?

2. Do good technical workers make good managers?

3. Do those who leave the technical track ever return to it? and

4. Are the best technical workers leaving the firm because of limitations on upward mobility?

The authors found a number of interesting results in their pursuit of answers to these questions. They found, for example, the firm studied seemed to follow a policy of moving better technical workers into lower-level supervisory positions to serve as gateways to promotion into better paying, higher-level, managerial positions. Also, although it may be difficult to predict how well a technically trained professional will perform as a manager, the trend is still toward choosing the technical worker over the non– technical worker for such a promotion. In general, the lack of flexibility in allowing career moves back to the technical areas are associated with increased flexibility in moving professions between managerial or other non– technical areas. Not surprisingly, the research by Roberts and Biddle (1994) showed that the firm under study was basically losing only those who were least qualified or evaluated. In terms of training, Roberts and Biddle (1994) found that the “older technical workers, those in most danger of becoming disillusioned and technologically obsolete, were receiving about as much training as anyone else” (575).

On the surface, it appears that successful firms promote the best, especially technical professionals who have proven themselves within the organization. Those who do not get promoted usually are the poorer performers and leave-probably not a bad result for the organization in the long– term. However, support for this trend is strong as organizations are becoming flatter in their structures; “firms are increasingly less able or willing to hold out climbing the hierarchy as the reward for productive work” (Roberts & Biddle, 1994: 577). Human capital can become a strategic asset that companies need to develop, enrich, and maintain if they are to sustain competitive advantage. Behling (1998) questions the wisdom of the detailed matching performed by many human resource specialists of the characteristics of the job to the individual. Some companies, such as Microsoft and Southwest Airlines, for example, focus on key characteristics-intelligence, character values, or conscientiousness-as major indicators of successful employee selection. Although general intelligence is positively correlated with job performance, it is more predictive of employee job knowledge (Behling, 1998; Roberts & Biddle, 1994). However, factors associated with training performance, job knowledge, emotional stability, and problem-solving abilities are not as clearcut in the related literature and require a great deal of research and thought before blanket statements are formulated that suggest intelligence is the only characteristic that an employer should measure in potential employees. As suggested by Behling (1998), “intelligence and conscientiousness are excellent indicates of potential, not guarantees of success” (82). Certain positions that require a high degree of problem solving, high degree of autonomy, and detailed learning on the job are more important than the skills brought into the workplace and are candidates for such limited matching of characteristics. Certainly, a high degree of flexibility in learning new skills, or when all other factors except intelligence and conscientiousness are equal, are ideal candidates for such limited matching of characteristics based only on the factors of intelligence and conscientiousness. These types of job characteristics require skills and decision-making attitudes that are highly associated with intelligence and conscientiousness behaviors and are highly characteristic of knowledge workers.

Technological advancements have played a major role in the workplace revolution by greatly enhancing employers’ abilities to monitor employees’ performance and providing the unprecedented ability to monitor virtually every aspect of a worker’s activities. It is, perhaps, surprising that despite this growing threat to privacy, no legal remedy for employees usually exists. The federal and state courts have, for the most part, upheld employer monitoring, according little or no weight to employee privacy interests, presumably because they do not yet understand the intrusiveness of the new monitoring technology in the workplace (Epps v. St. Mary’s Hosp., Inc., 1986). Neither Congress nor state legislatures have acted to fill the void and provide comprehensive statutory protection to workers. Privacy, even among highly intelligent knowledge workers and one of our society’s most cherished values, is gradually disappearing in the workplace. Perhaps, employee know-how in the resource-based view of the firm can be more refined to specify these two characteristics sought after by Bill Gates and other wealthy CEOs within an environment that promotes interconnectivity among knowledge workers while respecting privacy within their workplace environment.

Implications and Conclusions Concerning Electronic Privacy in the Workplace

Since most workplace conditions in the age of information technology require reliance on many aspects of computers for completing their operations’ strategies, demands on e-mails for completing a majority of these companies’ daily communication needs are great. As previously established, an employer may have reasonable expectations of the right to search stored communications, including e-mails, collected in normal business transactions. However, the concepts and use of e-mail in litigation in the workplace is a recent phenomenon. As the cases examined in this manuscript suggest, e-mail in litigation will only grow and will be limited only by the imagination of the parties involved and what the courts will allow. Many employee privacy advocates argue that employee privacy rights are fundamental rights that should be protected irrespective of market dynamics and established business practices. Managing the professional intellect of knowledge workers demands different roles of electronic surveillance, especially through e-mail, than those employer-imposed requirements associated with non-knowledge workers. While a 1986 Amendment to the Federal Wiretapping Act strictly prohibits employers from directly eavesdropping on employees’ personal telephone calls, business calls and e-mails made on business time are not protected. Unfortunately, no real protection from the use of hidden and video cameras to monitor workers exists. Hence, few states have any laws restricting employers from spying on employees. The newness of E-commerce and the sheer openness of the Internet have left this issue of privacy almost totally unprotected and unaddressed. Surprisingly, at a time when workplace privacy issues are receiving more publicity, many companies are competing openly to develop loyalty among their workers, especially among knowledge workers. “At many companies, the human factor-mployees’ knowledge, skill, and ability to innovate and serve customers– has overtaken the bricks-and– mortar assets of the Industrial Age as the biggest driver of profit” (Companies are finding … 2000: 20). Companies must be sensitive to the needs of their employees for privacy as they push toward performance measurement to develop sustainable competitive advantage. Employers must differentiate between spying and legitimate monitoring in the workplace.


Behling, 0. (1998, February). Employee selection: Will intelligence and conscientiousness do the job? The Academy of Management Executive 121): 77-86.

Bensaou, M. & Earl, M. (1998, Sept.-Oct.). The right mindset for managing information technology. Harvard Business Review: 119-128.

Brill v. Lance Corp. 119 F 3d 1266, 1268 (7th Cir. 1997).

Cathcart v. Flagstar Corp. No. 971977, 1998 WL 390834 (4th Cir. June 29, 1998).

Cespedes, F. V & Smith, H. J. (1993, Summer). Database marketing: New rules for policy and practice. Sloan Management Review 34: 722.

Coacher, LeEllen. (1999). Permitting systems protection monitoring: When the government can look and what it can see. The Air Force Law Review 46 AFL Rev. 155.

Companies are finding real payoffs in aiding employee satisfaction. (2000, Oct. 11). The Wall Street Journal: 20.

Culnam, M. J. (1993, September). How did they get my name? An exploratory investigation

of consumer attitudes toward secondary information use. MIS Quarterly. 17(3): 341-363.

Dixon, R. (1997, Fall). Smyth v. Pillsbury and the scope of an employee’s right of privacy in employer communications. Virginia Journal of Law and Technology, 2 Va. J.L. Fd Tech: 4.

Ellison v. Premier Salons Int’l, Inc., 981 F. Supp. 1219, 1222 (D. Minn. 1997).

Epps v. St. Mary’s Hosp., Inc. (1986). 802 R2d 412, 41617 (1 lth Cir. 1986).

Equifax, Inc. (1990). The Equifax report on consumers in the information age. Atlanta, GA.

Equifax, Inc. (1992). Harris– Equifax consumer privacy survey. Atlanta, GA.

Equifax, Inc. (1993). Harris– Equifax health information privacy survey. Atlanta, GA.

Farmer v. Continental Ins. Go., 955 R Supp. 970, 973, 977 (N.D. 111. 1997).

Fernberg, P M. (1985, September). Designing the workplace for the knowledge worker. Modern Office Technology. 30(9): 73-82.

Finch, B. J. (1999). Internet discussions as a source for consumer product

involvement and quality information: An exploratory study. Journal of Operations Management (17): 535-556.

Fridman, S. (1999, Sept. 30). California about to enact e-mail privacy law. Newsbytes News Network [On-line]. Available: www.newsbytes. com.

Governing cyberspace. (2000). [On-line]. Available: http:// www.cli.org/DPost/ascl.htm.

Griswold v. Fresenius USA, Inc., 978 E Supp. 718, 728 (N.D. Ohio 1997).

Hansen, M., Nohria, N., G Tierney, T. (1999, MarchApril). What’s your strategy for managing knowledge? Harvard Business Review: 106-116.

Hash, P E. Fs Ibrahim, C. M. (1996). B-Mail, electronic monitoring, and employee privacy, 37 S. Tex. L. Rev.: 893.

Intel Corp. v. Hamidi (1999). No. 98 AS05067, 1999 WL 450944, at *1 (Cal. App. Dep’t Super. Ct. Apr. 28, 1999).

Jenkins (1997) WL 758777, (Fed. Cir. Dec. 10, 1997).

Katz, J. E. & Tassore, A. R. (1990, Spring). Public opinion trends: Privacy and information technology. Public Opinion Quarterly 54: 125-143.

Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 750 (4th Cir. 1998).

Mason, R. 0. (1986, March). Four ethical issues of the information age. MIS Quarterly 10(l): 4-12.

McNeel v. Public Serv. Co., No. 96-1280, 1997 WL 383355.

Mehrabian, A. & de Wetter, R. (1987, February). Experimental test of an emotion-based approach to fitting brand names to products. Journal of Applied Psychology (72): 125130.

Michalisin, M. D., Smith, B. F., Ed Kline, D. M. (1997). In search of strategic assets. The International Journal of Organizational Analysis 5(4): 360-387.

O’Connor v. Ortega, [No. 85-530 Supreme Court of the United States, 480 U. S. 709; 197 S. Ct. 1492; 94 (1987)].

Palmer, J. W. & Griffith, D. A. (1988, March). An emerging model of web site design for marketing. Association for Computing Machinery: Communications of ACM 41(3): 44-51.

Patel v. Allstate Ins. Go., 105 R3d 365 (7th Gir. 1997).

Pearce, T. (1998). The human voice in the age of technology. In The Technology Management Handbook. [On-line]. Available: www.leadingout load.com/human.htm: 1-8.

Pfeffer, J. (1995). Producing sustainable competitive advantage through the effective use of people. Academy of Management Executive 9(1): 55-69.

Pfeffer, J. & Salancik, G. R. (1978). The external control of organizations: A resource

dependence perspective. New York: Harper and Row.

Piggott, S. E. A. (1997, December). Internet commerce and knowledge

management-The next megatrends. Business Information Review 14(4): 169-172.

Quinn, J. B., Anderson, R, & Finkelstein, S. (1996, MarchApril). Managing the professional intellect: Making the most of the best. Harvard Business Review: 71-80.

Roa, H. R., Salam, A. F, & DosSantos, B. (1998, March). Marketing and the Internet. Association for Computing Machinery: Communications of ACM 41(3): 32-34.

Roberts, K. & Biddle, J. (1994, Winter). The transition into management by scientists and engineers: A misallocation or efficient use of human resources? Human Resource Management 33(4): 561-579.

Schrage, M. (1999, October 11). It seemed brilliant at the time. Fortune 140(7): 324.

Schwenn v. Anheuser-Busch, Inc., No. CIVA.95-CV-716 (RSP/ GJD), 1998 WL 166845.

Simon, S. (1998). Searching for confidentiality in cyberspace: Responsible use of e-mail for attorney-client communications. 20 University of Hawaii Law Review 527, 533 (citing Samuel A. Thumma & Patricia A. Hubbard, E-Mail Can Deliver Legal Problems, Ariz. Bus. Gazette, Oct. 17, 1996, at 15).

Smith, H. J., Milberg, S. J., & Burke, S. J. (1996, June). Information privacy: Measuring individuals’ concerns about organizational practices. MIS Quarterly 20(2): 167-195.

Smith, H. J. (1994). Managing privacy: Information technology and organizational America. Chapel Hill, NC: University of North Carolina Press.

Smith v. Department of Hous. Fa Urban Dev., No 98-3334, 1999 WL 110634.

Smyth v. Pillsbury Co. (1996). 914 R Supp. 97 (E.D. Pa. 1996).

Stallings, W. & Van Slyke, R. (1998). Business data communications, 3′ edition. UpperSaddle River, NJ: Prentice Hall.

Stone, E. F., Giardner, D. G., Gueutal, H. G., & McCure, S. (1983, August). A field experiment comparing information-privacy values, beliefs, and attitudes across several types of organizations. Journal of Applied Psychology 68(3): 459-468.

Straub, Jr., D. W. & Collins, R. W. (1990, June). Key information liability issues facing

managers: Software piracy, proprietary databases, and individual rights to privacy. MIS Quarterly 14(2): 142156.

Swanson v. Civil Air Patrol, 37 F. Supp. 2d 1312, 1328 (M.D. Ala. 1998).

Thumma, S. A. & Jackson, D. S. (1999). The history of electronic mail litigation. Santa Clara Computer and High Technology Law Journal, School of Law, Santa Clara University.

Vogel, J. (2000). The walls have eyes: The many ways bosses spy on employees. Working staff: The disappearance of workplace privacy. [On-line]. Available: www.pbs.org/web lab/workingstiff/features/ ionu.html.

Western Union Intl, Inc. v. FCC (1976). 544 F.2d 87 2nd Cir. 1976.

Wilborn, S. E. (1998, Spring). Revisiting the public/private distinction: Employee monitoring in the workplace. Georgia Law Review Association, University of Georgia. 32 Ga. L. Rev. 825.

Williamson, M. (1996, March 1). One-to-one marketing concept sparks fear in many. Computing Canada 22(5): 1, 6.

Alan D. Smith and Robert A. Faley

Alan D. Smith, Ph.D., is professor of operations management, Department of Management & Marketing, Robert Morris College, Pittsburgh, PA 15219-3099.

Robert A. Faley, Ph.D., is professor of management, Graduate School of Management, Kent State University, Kent, OH 44242-0001.

Copyright College of Business Administration, Georgia Southern College Fall 2001

Provided by ProQuest Information and Learning Company. All rights Reserved