CH-7 Ethical Decision-Making: Technology and Privacy in the Workplace – Business Ethics: Decision Making for Personal Integrity and Social Responsibility : Chapter Notes

Chapter 7: Ethical Decision-Making: Technology and Privacy in the Workplace Chapter Objectives After reading this chapter, you should be able to: 1. Explain and distinguish the two definitions of privacy. 2. Describe the ethical sources of privacy as a fundamental value. 3. Identify the three legal sources of privacy protection. 4. Discuss the concept of a “reasonable expectation of privacy.” 5. Discuss recent development in connection with employee monitoring. 6. Explain the risks involved in a failure to understand the implications of technology and its use. 7. Identify additional ethical challenges posed by technology use. 8. Articulate the manner in which employee monitoring works. 9. Enumerate the reasons why employers choose to monitor employees’ work. 10. Discuss the ethics of monitoring as it applies to drug testing. 11. Discuss the ethics of monitoring as it applies to polygraphs, genetic testing, and other forms of surveillance. 12. Explain why monitoring might also pose some costs for the employer and for the employee. 13. Discuss the elements of a monitoring program that might balance the interests of the employee and the employer. 14. Explain the interests of an employer in regulating an employee’s activities outside of work. 15. Discuss the implications of September 11, 2001, on privacy rights. Opening Decision Point Being Smart About Smartphones This Decision Point challenges students to imagine themselves in the position of an employee who uses a smartphone to take notes during a meeting with an important client. The client’s CFO is present at the meeting and misinterprets this behavior, assuming that the employee is “fiddling around with their phone.” The CFO complains to the employee’s supervisor. While in the supervisor’s office to discuss the problem, the employee’s phone vibrates with a call from another important client. The client does not like to be kept waiting and the employee is aware that after three vibrating alerts, the phone is set to ring. Students are asked to identify as many ethical issues raised by the use of smartphones in the workplace as they can, then consider the following questions: • Did you do anything wrong this morning in the meeting? Recall that your client was offended. • At what point does impolite behavior – for instance, actions that might offend others, such as answering emails during a meeting, or playing games – cross the line into unethical behavior? • What type of policy would you suggest for an organization regarding the use of smart phones in the workplace, if any? • Should the rules be different for using smart phones during in-house meetings, on one hand, and during meetings with clients or suppliers, on the other? • How might you have acted differently during the meeting this morning (above) to achieve a different result with your client? • What are you about to say to your boss? I. Introduction a. Flat World: Thomas Friedman’s book, The World is Flat, describes the hastening pace of globalization and how significantly the business, economic and political landscape has changed in just the first decade of the 21st century. i. The image of a “flat world” is used to convey the idea that distance, time, geography, and national boundaries no longer create artificial barriers to business and trade. ii. In fact, nine of the 10 forces that Friedman identifies as creating this flat world are the direct result of computer and Internet-related technologies. b. Global Business World: The technical revolution is no doubt largely responsible for today’s global economy. i. The technical revolution has brought with it as many challenges as opportunities. ii. Many of these challenges raise ethical questions, particularly as technology impacts employee and consumer privacy. c. Privacy: Privacy issues in the workplace raise ethical issues involving individual rights as well as those involving utilitarian consequences. i. Workplace privacy issues evoke an inherent conflict between the rights of employers and of employee. ii. Employers have the right to protect their interests and employees have the right to be free from wrongful intrusions into her or his personal affairs. iii. Conflicts can arise in the workplace environment through the regulation of persona activities or personal choices, or through various forms of monitoring. *Reference: “Reality Check – Condemned to Repeat”* d. Monitoring: Contrasting utilitarian arguments can be offered on the ethics of monitoring employees. i. Employers can argue that the only way to manage the workplace effectively is to maintain knowledge about and control over all that takes place within it. ii. An employee can contend that she or he will be most productive in a supportive environment based on trust, respect, and autonomy. iii. Whose rights should prevail? Which consequences should take precedent? e. Scope of the Chapter: i. This chapter will examine the origins of the right to privacy and the legal and ethical limitations of that right. ii. It will also examine the means by which employers monitor performance and the ethical issues that arise in connection with these potential technological invasions to privacy. iii. Finally, the chapter will connect issues of technology and privacy to the balance of rights and responsibilities between employers and employees. iv. This discussion is limited to the workplace and related arenas due to the tremendous breadth of technology’s reach and the wide variety of other issues it brings up. II. The Right to Privacy a. Protection of Privacy Rights: With the tremendous increase in computer technology in recent decades, calls for greater protection of privacy rights have increased. i. There is widespread confusion concerning the nature, extent, and value of privacy. ii. Some Western countries do not acknowledge a legal right to privacy as it is recognized in the United States, while others seem far more sophisticated in their centralized and consistent approaches to personal privacy issues. iii. Even within the United States, there is significant disagreement about privacy. 1. The U.S. Constitution makes no mention of a right to privacy. 2. Also, the major Supreme Court decisions that have relied on a fundamental right to privacy, Griswold v. Connecticut and Row v. Wade, remain highly contentious and controversial. b. Defining Privacy: *Chapter Objective 1 Addressed Below* i. Two general and connected understandings of privacy are: 1. Privacy as a right to be “let alone” within a personal zone of solitude. 2. Privacy as the right to control information about oneself. 3. It is valuable to consider the connection between these two senses of privacy. ii. Privacy is important because it establishes the boundary between individuals and thereby serves to define one’s individuality. iii. The right to control certain extremely personal decisions and information helps determine the kind of person we are and the person we become. c. Conflicting Beliefs about Privacy: i. Many believe that a right to be let alone is much too broad to be recognized as a moral right. 1. It would be difficult for employees to be completely left alone in the workplace. ii. Others have concluded that a better understanding focuses on privacy as involving the control of personal information. 1. From this perspective, the clearest case of an invasion of privacy occurs when others come to know personal information about us, as when a stranger reads your e-mail or eavesdrops on a personal conversation. 2. Yet, the claim that a right of privacy implies a right to control all persona information might also be too broad. d. Philosophical Argument: Philosopher George Brenkert has argued that the informational sense of privacy involves a relationship between two parties, A and B, and personal information X about A. i. Privacy is only violate when B comes to know X and no relationship exists between A and B that would justify B knowing X. ii. Limiting access of personal information only to those with whom one has a personal relationship is one important way to preserve one’s own personal integrity and individuality. iii. It is perhaps that choice of limitation or control that is the source of one’s sense of privacy. As explained by legal scholar, Jennifer Moore, “maintaining a zone of privacy gives you a degree of control over your role, relationship, and identity, which you would not have if everyone were aware of all available information about you. The choice is part of what makes it possible to be intimate with your friend and to be professional with your employer.” ** Teaching Note: To drive home the relevance of privacy to today’s students, sometimes it is important to find topics on which they feel vulnerable. One of those topics might be how long something can follow them into the future. Consider discussing whether a university should identify the reason behind a dismissal (expulsion) of a student if it was for academic integrity reasons. Should a university disclose this information on the student’s transcript such that it would follow her or him the rest of their lives? e. Ethical Sources of a Right to Privacy: *Chapter Objective 2 Discussed Below* i. Social Contract: The right to privacy is founded in the individual’s fundamental, universal right to autonomy. This right is restricted, by a social contract in our culture that prevents us from infringing on someone else’s right to her or his personal autonomy. ii. Philosopher Patricia Werhane describes this boundary as a “reciprocal obligation”; that is, for an individual to expect respect for her or his personal autonomy, that individual has a reciprocal obligation to respect the autonomy of others. iii. Applied to the workplace: reciprocal obligation implies that, while an employee has an obligation to respect the goals and property of the employer, the employer has reciprocal obligation to respect the rights of the employee as well, including the employee’s right to privacy. iv. Werhane has asserted that a bill of rights for the workplace would therefore include both the right of the employee to privacy and confidentiality, and the right of employers to privacy in terms of confidentiality of trade secrets and so on. v. Kant links the moral worth of individuals to “the supreme value of their rational capacities for normative self-determination” and considers privacy a categorical moral imperative. f. Hypernorms: Ethicists Thomas Donaldson and Thomas Dunfee have developed an approach to ethical analysis that seeks to differentiate between those values that are fundamental across culture and theory, “hypernorms,” and those values that are determined within “moral free space” and that are not hypernorms. i. They propose that we look to the convergence of religious, cultural, and philosophical beliefs around certain core principles as a clue to the identification of hypernorms. ii. Examples of hypernorms: freedom of speech, the right to personal freedom, the right to physical movement, and informed consent. iii. Individual privacy is at the core of many of these basic minimal rights and is a necessary prerequisite to many of them. iv. A key finding of one survey of privacy in 50 countries around the world found that “nearly every country in the world recognizes privacy as a fundamental human right in their constitution, either explicitly or implicitly.” v. Ultimately, the failure to protect privacy may lead to an inability to protect personal freedom and autonomy. vi. It is important to note here, in particular, that this discussion of privacy foundations might be considered by some to be particularly North American-based in its grounding in the protection of liberty and autonomy. These analysts would suggest that a European foundation would be based in a ground of the protection of human dignity. g. Property Rights: Legal analysis of privacy using a property rights perspective yields insight into personal freedoms and rights. i. “Property” is an individual’s life and all nonprocreative derivatives, such as thoughts, ideas and personal information, of her or his life. ii. The concept of property rights involves a determination of who maintains control over tangibles and intangibles, including personal information. iii. Property rights relating to personal information thus define actions that individuals can take in relation to other individuals regarding their personal information. 1. If one individual has a right to her or his personal information, someone else has a commensurate duty to observe that right. iv. Private property rights depend upon the existence and enforcement of a set of rules that define who has a right to undertake which activities on their own initiative and how the returns from those activities will be allocated. 1. Whether an individual has the exclusive right to her or his personal information depends upon the existence and enforcement of a set of rules giving the individual that right. 2. Legal rules about this remain vague and many legal theorists contend that additional or clearer rules regarding property rights in personal information would lead to an improved and more predictable marked for this information. h. Legal Sources of a Right to Privacy: *Chapter Objective 3 Addressed Below* i. The law has not yet caught up with the technology involved in employee privacy. As a result, this is one area where simply obeying the law may fall far short of responsible management practice. ii. Example: While the law may be very clear with regard to tapping a worker’s telephone, it is less clear with monitoring a worker’s e-mail or text messages on a handheld device. iii. Privacy can be legally protected in three ways: by the constitution (federal or state), by federal and/or state statutes, and by the common law. 1. Common law refers to the body of law comprised of the decision handed down by courts, rather than specified in any particular statutes or regulations. 2. The Constitution’s Fourth Amendment protection against an unreasonable search and seizure governs only the public sector workplace because the Constitution applies only to state action. Therefore, unless the employer is the government or other representative of the state, the Constitution generally will not apply. 3. Statutes also offer little, if any, protection from workplace intrusions. iv. The Electronic Communications Privacy Act of 1986 (ECPA) prohibits the "interception" or unauthorized access of stored communications. 1. The courts have rule that “interception” applies only to messages in transit and not to messages that have actually reached company computers. Therefore the impact of ECPA is to punish electronic monitoring only by third parties and not by employers. 2. The ECPA allows interception where consent has been granted. A firm that secures employee consent to monitoring at the time of hire is immune from ECPA liability. v. Some states rely on statutory protections rather than common law. Others provide constitutional recognition and protection of privacy rights. vi. In all states except California, application of this provision to private sector organizations is limited, uncertain, or not included at all. vii. The “invasion of privacy” claim with which most people are familiar is one that developed through case law called “intrusion into seclusion.” 1. This legal violation occurs when someone intentionally intrudes on the private affairs of another when the intrusion would be “highly offensive to a reasonable person.” 2. As we begin to live more closely with technology, and the intrusions it allows, we begin to accept more and more intrusions in our lives as reasonable. 3. It is important to be aware that while Georgia was the first jurisdiction whose courts recognized a common law—or court-created—right to privacy, two states, North Dakota and Wyoming, do not recognize any privacy claims generally accepted by the courts. 4. In City of Ontario v. Quon (2010), the U.S. Supreme Court addressed the issue of employer monitoring for the first time. a. Two California police officers were disciplined after an audit of text messages on city-issues devices found that many of the officers' texts were personal in nature. Though the officers had been assured by their supervisor that an audit would not be performed, the Court determined that the audit was permissible nonetheless because the review of the messages was reasonably "work-related." 5. However, relying on the Quon case as precedent for protection in regards to electronic surveillance of employees is a double-edged sword. a. Under the Quon precedent, how much protection for electronic communications the Fourth Amendment will provide to employees remains unclear. b. As well, those protections do not extend to the private sector. Remember that the employer in Quon was a government agency. *Reference: “Reality Check - Privacy and Technology”* *Chapter Objective 4 Addressed Below* i. Notice: Many recent court decision with regard to monitoring specifically seem to depend on whether the worker had notice that the monitoring might occur. i. An employee’s legitimate and reasonable expectation of privacy is the basis for finding an invasion of privacy. If an employee has actual notice, then there truly is no real expectation of privacy. 1. This conclusion was supported in K-Mart v. Trotti, where the court held that search of an employee’s company-owned locker was unlawful invasion since the employee used his own lock. 2. However, in Smyth v. Pillsbury, Smyth sued after his manager read his e-mail, even though Pillsbury had a policy saying that e-mails would not be read. The court concluded, “we do not find a reasonable expectation of privacy in the contents of email communications voluntarily made by an employee to his supervisor over the company email system, notwithstanding any assurances that such communications would not be intercepted by management” (emphasis added). 3. The end result of Smyth, then, is to allow for monitoring even when a firm promises not to monitor. 4. Evidence of the impact of this decision is the fact that only two states, Connecticut and Delaware, require employers to notify workers when they are being monitored. 5. Increasingly, however, states are enacting laws to limit employer monitoring powers. 6. In Stengart v. Loving Care (2012), the New Jersey Supreme Court diverged from Smyth, ruling that an employer and its outside counsel could not access an employee's attorney-client communications that utilized a company laptop. a. Though the company's policy notified employees of email monitoring, it failed to properly alert employees that the company deployed software that captured images of all email exchanges, including messages sent using personal, password-protected accounts. *Reference Table 7.1 Here* j. Global Applications: The unpredictable regime of privacy protection is all the more problematic to maintain when one considers the implications of the European Union’s Directive on Persona Data Protection. (CITE) i. The directive strives to harmonize all the various means of protecting personal data throughout the European Union, where each country originally maintained myriad standards for information gathering and protection. ii. The directive also prohibits E.U. firms from transferring personal information to a non-E.U. country unless that country maintains “adequate protections” of its own; in other words, protections equivalent to those the directive guarantees in E.U. countries. iii. Because the United States would not qualify as having adequate protection, the U.S. Department of Commerce negotiated a “Safe Harbor” exception for firms that maintain a certain level of protection of information. iv. In 2012, the E.U. announced plans to reform and streamline data protection policy, with increased protection for individuals. These reforms will not go into effect before 2016, and it is unclear what impact these reforms will have on the "Safe Harbor" exception. *Reference Table 7.2 Here* v. Legal Uncertainty: Ethics is perhaps the only source of an answer to the legal uncertainty or instability concerning the challenging areas of information gathering. vi. One court stated, “as technology races with ever increasing speed, our subjective expectations of privacy may be unconsciously altered…our legal rights to privacy should reflect thoughtful and purposeful choices rather than simply mirror the current state of the commercial technology industry.” Decision Point Inquiring Employers Want to Know This Decision Point addresses the boundaries of privacy within an employment application. The following information is sometimes requested on standard employment applications, though candidates might consider some of it to be private or personal. Which of the following items about an employee might an employer have a legitimate claim to know, and why?  A job applicant’s social security number  An applicant’s arrest record  An employee’s medical records  An employee’s marital status  Whether a job applicant smokes  An employee’s political affiliation  An employee’s sexual orientation  An employee’s credit rating Students should consider the following questions in their assessment of this scenario: • What facts are relevant to your decisions? • What would the consequences be of refusing to answer any questions on an employment application? • Are you basing your decision on particular rights of the employee or the employer? • Are there people other than the employer and employee who might have a stake in what information is released to employers? k. Business Implications: What are the implications of this definition or understand of privacy for businesses and for business ethics analysis? i. One would argue that personal information should remain private unless a relationship exists between the business and the individual that legitimates collecting and using personal information about that individual. ii. The nature of the employment relationship helps determine the appropriate boundary between employers and employees and therefore the information that ought to remain rightfully private within the workplace. iii. If we adopt something like a contractual model of employment, where the conditions and terms of employment are subject to the mutual and informed consent of both parties, then employee consent would become one major condition on what information employers can collect. l. Employee privacy is violated whenever: i. Employers infringe upon personal decision that are not relevant to the employment contract (whether the contract is implied or explicit) ii. Personal information that is not relevant to that contract is collected, stored, or used without the informed consent of the employee. m. The burden of proof: rests on the employer to establish the relevancy of personal decisions and information at issue. III. Linking the Value of Privacy to the Ethical Implications of Technology a. Challenging Privacy: The advent of new technology challenges privacy in ways we could never before imagine. Consider the implications technology has for: i. Employee and employer expectations regarding the use of time. ii. The distinction between work use and personal use of technology. iii. The protection of proprietary information. iv. Performance management. v. Privacy interests. vi. Accessibility issues related to the digital divide. b. Increased Opportunities and Challenges: i. Technology allows for in-home offices, raising extraordinary opportunities as well as challenges, issues of safety, and privacy concerns. ii. Because technology allows each of us to be more productive, it provides us benefits and allows employers to ask more of each employee. iii. Advances in technology seem to blur boundaries between leisure and work time, as well as between our places of work and our homes. c. Value Judgments: New technology does not necessarily impact our value judgments but instead simply provides new ways to gather the information on which to base them. i. Consider the attacks of September 11, 2001, on an employer’s decision to share personal employee information or customer information with law enforcement. Private firms may be more willing, or less willing, today to share private information than they would have been previously. d. New Technology Means New Challenges: Firms often experience, and find themselves ill-prepared for, unanticipated challenges stemming from new technology. i. Example: An employee at PhoneDog, a company that provides mobile device news and reviews, created a work-related Twitter account that amassed 17,000 followers. When he left the company, he kept control of the account and used it as his personal account. The company sued, but the employee claimed that the account belonged to him. The case is ongoing, but regardless of the outcome, it illustrates the dangers of failing to establish clear policies governing the use new technologies as they arise in the workplace. e. New Ethics for a New Economy? i. The same values one held under previous circumstances, if they are true and justified, should permeate and relate to later circumstances. ii. Perspectives are impacted by the understanding and use of new technology. iii. An economist, Antonio Argandona, cautions about the change in values that may be caused by opportunities created by technology, but he also points to the good that new technology could do, including developing depressed areas, defending human rights, and increasing citizenship participation. f. Information and Privacy: i. Businesses need to be able to anticipate the perceptions of its stakeholders in order to be able to make the most effective decisions for its long-term sustainability. New technology can be confusing for the public so it helps to plan ahead for technological changes. ii. Trust is the key issue with the introduction of new technology. 1. The motto at Google, the Internet-based search engine, is “don’t be evil.” The company is sensitive to stakeholder concerns as it develops new technology. 2. Google introduced a new social networking program called “Google Buzz”. The tool was added automatically to the accounts of all Gmail users who did not actively "opt-out," and the contact lists of all Google Buzz users were made public. 3. Google strives to convince consumers that they can trust whomever is handling their e-mail. iii. When consumers rely on technology provided by a business, they might easily assume that the business will respect their privacy. They would like to believe that those responsible for the technology are, themselves, accountable to the user. 1. Though Google responded quickly to consumer complaints about “Google Buzz,” the Federal Trade Commission found Google in violation of user privacy rules. a. Not only were users inadequately informed that their contacts would be publicly available, those who attempted to "opt-out" were not fully disengaged from the service. In addition, the FTC found that Google had falsely asserted that the Buzz service adhered principles of the U.S.-EU Safe Harbor privacy framework. 2. A year later, the company was accused of misrepresenting its policy of using "cookies," the small pieces of software that are used to track information on computers, to users of certain internet browsers. Google agreed to pay a $22.5 million fine, the largest civic penalty ever levied by the FTC, for violating the terms of its earlier settlement regarding consumer privacy. iv. By failing to fully comprehend and plan for its stakeholders’ perceptions of its programs, Google breached ethical boundaries and suffered public backlash. Decision Point Technology Dilemmas This Decision Point addresses questions about using technology for “good” or “evil” raised by an anonymous Web posting by an employee who has been directed by management to use a computer program to spy on a colleague. The employee seeks general thoughts and advice regarding legal protection against liability for following this directive. Students should consider the following questions in assessing this scenario: • What are the key facts relevant to your response? • What is the ethical issue involved in peer spying in the workplace? • Who are the stakeholders? • What alternatives would you suggest to this individual, and what alternatives exist for employers who wish to gather information about employees surreptitiously? • How do the alternatives compare; how do the alternatives affect the stakeholders? g. Should Moral Requirements Be Imposed? i. Economist Antonio Argandona contends that if new technology is dependent on and has as its substance information and data, then significant moral requirements should be imposed on that information. He suggests the following necessary elements: 1. Truthfulness and accuracy: The person providing the information must ensure that it is truthful and accurate, at least to a reasonable degree. 2. Respect for privacy: The person receiving or accumulating information must take into account the ethical limits of individuals’ (and organizations’) privacy. This would include issues relating to company secrets, espionage, and intelligence gathering. 3. Respect for property and safety rights: Areas of potential vulnerability, including network security, sabotage, theft of information and impersonation, are enhanced and must therefore be protected. ii. How might firms respond to this call for responsibility in the development, manufacture, marketing and service related to new production or other corporate activities? What ethical issues does this proposal raise? IV. Managing Employees through Monitoring *Chapter Objective 5 Addressed Below* a. Monitoring in the Workplace: One of the most prevalent forms of information gathering in the workplace is monitoring employees’ work, and technology has afforded employers enormous abilities to do so effectively at low costs. i. According to a 2011 survey, more than 40 percent of businesses report having dealt with issues of employee misuse of social networks. ii. There is an increasing trend within mid- to large-sized U.S. firms with regard to employee e-mail monitoring. 1. The American Management Association’s 2007 survey reported that 43 percent of firms monitored email communications. 2. A 2011 CareerBuilder.com study found that half of surveyed companies engaged in surveillance of employee email, an increase of 3 percent from the previous year. iii. With the rise of social media and social networking use in recent years, internet use monitoring is evolving. 1. Although a 2012 survey found that only 10 percent of companies currently monitor employee use of Facebook, YouTube, LinkedIn, and other social media sites, 60 percent of companies anticipate doing so by 2015. *Chapter Objective 6 Addressed Below* b. Hidden Ethical Issues: Many of the ethical issues that arise in the area of managing information are not readily visible. i. When we do not completely understand the technology, we might not understand the ethical implications of our decisions and we are not able effectively to protect our own information. 1. Can your employer read your e-mail? Is this ethical? 2. When we mistakenly believe that no one is watching, we may engage in activities that we would otherwise refrain from doing, such as deleting an e-mail message that we do not want anyone to read. ii. A knowledge gap exists between people who understand the technology and others who are unable to protect themselves because they do not understand. *Chapter Objective 7 Addressed Below* c. Access: Technology allows for access to information that was never before possible. i. Access can take place unintentionally, such as a supervisor discovering personal information during a routine background check. ii. Technology allows us to work from almost anywhere on the planet, so we are seldom out of the boundaries of our workplace. 1. Our total accessibility creates new expectations, and therefore conflicts. It raises such questions as: How long is reasonable to wait before responding to e-mail? Should a text message be considered more urgent than an email, or do the same answers apply? iii. Continuous accessibility blurs the lines between our personal and professional lives. *Reference: “Reality Check – “Is Privacy Perception a Factor of Age?”* iv. Another challenge posed by the new technology in the workplace is the facelessness that results from its use. 1. If we have to face someone as we make our decisions, we are more likely to care about and take into account the impact of our decision on that person. 2. The ease and informality of electronic communications allow us to be more careless. 3. When one puts something in writing, we assume that people mean what they say, and we hold them to it as a precise rendering of their intent. To the contrary, we consider email, texting, and posting on social media sites to be more akin to conversation, and treat it as such, lobbing notes back and forth, much as we would in a conversation, and permitting the idiosyncrasies that we would allow when speaking. 4. Most digital communication arose in the personal context as forms of spontaneous, casual, off-the-cuff communication. We do not think in advance and often write quickly without re-reading before sending. We send things in writing now that we might only have chatted about before. d. Ten Commandments: The Computer Ethics Institute has created “The Ten Commandments of Computer Ethics,” to address some ethical issues presented by increased computer use. They include: i. Thou shalt not snoop around in other people’s computer files. ii. Thou shalt think about the social consequences of the program you are writing or the system you are designing. iii. Thou shalt always use a computer in ways that insure consideration and respect for your fellow humans. *Reference Table 7.3 Here* *Chapter Objective 9 Addressed Below* e. Reasons for Monitoring: i. Employers need to manage their workplaces to place workers in appropriate positions, to ensure compliance with affirmative action requirements, and to administer workplace benefits. ii. Monitoring also allows the manager to ensure effective, productive performance by preventing the loss of productivity to inappropriate technology use. iii. Research evidences a rise in personal use of technology. Nearly 80 percent of North Americans, 61 percent of Europeans, and a total of nearly 33 percent of the world had internet access in 2011. Over 70 percent of the population on the internet uses social media sites. iv. A 2011 survey found that during a typical workday, 61 percent of workers send personal emails, 65 percent conduct web searches unrelated to work, and 58 percent of those with social media profiles check their profiles. v. Monitoring offers employers a method by which to protect its proprietary information, to protect against theft, to protect their investment in equipment and bandwidth, and to protect against legal liability. *Reference: “Reality Check –Blocking Social Media” * f. Legal Liability: i. Given the courts’ focus in many cases on employer response to claims of sexual harassment or unethical behavior, firms believe they need a way to uncover their inappropriate behaviors. 1. In 2009, more than half of companies surveyed had fired an employee for email or internet policy violations.. 2. Without monitoring, how would firms know what occurs using their technology? ii. Courts maintain the standard in many cases of whether the employer “knew or should have known” of wrongdoing, so it seems that the expectation is that firms are monitoring their employees to discover these wrongdoings. *Reference: “Reality Check - Surfing Porn at Work”* g. Monitoring Employees through Drug Testing: Drug testing is one area in which employers have had a longer history of monitoring employees. i. The employer has a strong argument in favor of drug or other substance testing based on the law. 1. Since the employer is often responsible for legal violations its employees committed in the course of their job, the employer's interest in retaining control over every aspect of the work environment increases. 2. Employees may argue that their drug usage is only relevant if it impacts their job performance. ii. Consider the possibilities of incorrect presumptions in connection with drug testing. 1. An employer may decide to test based on common "signs" of drug use. 2. Is it ethical to presume someone is guilty based on these signs? Does a person have a fundamental right to be presumed innocent? Or, do the risks of that presumption outweigh the individual’s rights in this situation and justify greater precautions by the employer? iii. About one-fifth of companies in a 2011 poll reported an increase in employee productivity after implementing drug testing. 1. Though drug testing may provide a productivity benefit for companies, such policies may introduce legal and ethical challenges for employers. a. Example: A 2011 study revealed that “the rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent last year [2010] alone.” However, the Americans with Disabilities Act prohibits employers from inquiring about employee prescription drugs unless the employer has a reasonable basis for believing that the worker poses a safety threat or is unable to do his or her job. iv. In the seminal legal case on the issue, Skinner v. Railway Labor Executives' Ass'n, the Court addressed the question of whether certain forms of drug and alcohol testing violate the Fourth Amendment. 1. The defendant justified testing railway workers based on safety concerns: "to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs. 2. The court held that “[t]he Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, likewise presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." v. It was clear to the Court that the governmental interest in ensuring the safety of the traveling public and of the employees themselves “plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty.” vi. The issue for the Court was whether, absent a warrant or individualized suspicion, the means by which the defendant monitored compliance with this prohibition justified the privacy intrusion. vii. The court concluded that the railway’s compelling interests outweighed privacy concerns since the proposed testing “is not an undue infringement on the justifiable expectations of privacy of covered employees.” h. Public Interest in Drug Testing: Where public safety is at risk, there is arguably a compelling public interest claim from a utilitarian perspective that may be sufficiently persuasive to outweigh any one individual’s right to privacy or right to control information about oneself. i. What about jobs where public safety is not at risk? Is it justifiable to test all employees and job applicants? Is the proposed benefit to the employer sufficiently valuable in your perspective to outweigh the employee’s fundamental interest in autonomy and privacy? ii. Should a utilitarian viewpoint govern or should deontological principles take priority? Does distributive justice apply under these circumstances? i. Drug-Free Workplaces: Several major retail employers, like Home Depot, Ikea, and Wal-Mart, have comprehensive drug-testing policies for job applicants and employees. i. Many stores promote their drug-free workplace policy as a marketing strategy. ii. Are these policies ethically appropriate? Decision Point Limits on Personal Information in Hiring This Decision Point asks what limits should be placed on the grounds on which employment can be denied to a job applicant. The law prohibits denying someone a job on the basis of race, religion, ethnicity, gender, or disability. The law generally allows denial of a job on the basis of drug use. Like employment at will, the burden of proof lies with the job applicant to demonstrate that the denial was based on the prohibited categories; otherwise employers need no reason to deny someone a job. Suppose a business wanted to ensure not only a drug-free workplace, but also an alcohol-free workplace. Would a business have the ethical right to deny a job, or dismiss an employee, for drinking alcohol? Courts have been asked to decide the legitimacy of dismissals for cigarette smoking, for political beliefs, and for having an abortion. Which of these do you think is legitimate grounds for dismissal? More than 80 percent of mid to large-sized firms use these tests or some form of psychological profiling to evaluate potential employees or during orientation. Such tests ask many personal questions, including some that concern a person’s sexual life. Would a business have an ethical right to deny employment to someone on the basis of the results of a personality test? What are some of the questions or concerns you might raise in trying to answer the above challenge? What would you suggest a business do to respond to them? Students should consider the following questions when assessing this scenario: • What are the key facts relevant to your response? • What are the ethical issues involved in basing hiring decisions on personal information? • Who are the stakeholders? • What alternatives would you suggest to business in considering personal information in hiring, and what alternatives exist for employers? • How do the alternatives compare for business and for the stakeholders? V. Other Forms of Monitoring a. Limitations: Employers are limited in their collection of information through other various forms of testing, such as polygraphs or medical tests. i. Employers are constrained by a business necessity and relatedness standard, or by a requirement of reasonable suspicion. ii. With regard to medical information, employers’ decisions are not only governed by the Americans with Disabilities Act, but also restricted by the Health Insurance Portability and Accountability Act (HIPPA). 1. HIPPA stipulates that employers cannot use “protected health information” in making employment decisions without prior consent. 2. Protected health information includes all medical records or other individually identifiable health information. *Chapter Objective 11 Addressed Below* iii. In recent years polygraph and drug testing, physical and electronic surveillance, third-party background checks, and psychological testing have all been used as means to gain information about employees. More recently, electronic monitoring and surveillance are increasingly being used in the workplace. iv. Genetic testing is one area that is sure to provide new questions about privacy. 1. It will offer businesses a wealth of information about potential employees and customers. v. The Genetic Information Non-Discrimination Act of 2008 (GINA) became effective in November 2009 and prohibits discriminatory treatment in employment based on genetic information. 1. GINA presents interesting questions since it defines “genetic information” in a more broad sense than one might imagine. 2. Under GINA, your genetic information is not merely information about you, but also your family’s medical history, including any disease or disorder, or genetic test results of a family member. The term “family member” includes your dependents and relatives all the way to the fourth degree of kinship. 3. In addition, GINA mandates that employers be extremely careful in terms of how they gather and manage employee genetic information as they are subject to similar conditions to the Americans with Disabilities Act. 4. GINA does provide for exceptions. a. For instance, an employer can collect genetic information in order to comply with the Family Medical Leave Act or to monitor the biological effects of toxic substances in the workplace. b. Although GINA contains a strict confidentiality provision, an employer may release genetic information about an employee under certain specific circumstances: i. to the employee or member upon request; ii. to an occupational or other health researcher; iii. in response to a court order; iv. to a government official investigating compliance with this Act if the information is relevant to the investigation; v. in connection with the employee's compliance with the certification provisions of the Family and Medical Leave Act of 1993 or such requirements under state family and medical leave laws; or vi. to a public health agency. c. Finally, there is a "safe harbor" liability exception for employers that inadvertently receive genetic information in response to a lawful medical inquiry, so long as the employer has notified the respondent of her or his GINA rights. 5. GINA could represent a possible privacy intrusion not only into the individual employee's personal privacy but also the worker's family's information. Can discrimination based on genetic information ever be an ethically justified basis for an employment decision? b. Business Reasons to Limit Monitoring: Employee advocates suggest limitations on monitoring for several reasons. i. There is a concern that monitoring may create a suspicious and hostile workplace. 1. Monitoring reduces the level of worker autonomy and respect, as well as workers’ right to control their environment. The employer neglects to consider the worker. 2. Monitoring may arguably constrain effective performance since it can cause increased stress and pressure, negatively impacting performance and having the potential to cause physical disorders. 3. One study found monitored workers suffered more depression, extreme anxiety, severe fatigue or exhaustion, strain injuries, and neck problems than unmonitored workers. 4. These elements will lead to an unhappy, disgruntled worker who perhaps will seek alternative employment, and also to lower productivity and performance that will lead to higher costs and fewer returns to the employer. ii. Employees claim that monitoring is an inherent invasion of privacy that violates their fundamental human right to privacy. c. Balancing Interests: Where should the line be drawn between employer and employee rights? i. As long as technology exists to allow for privacy invasions, should the employer have the right to use it? Consider whether monitoring could be made ethical or humane: 1. Give due notice to employees that they will be monitored 2. Provide employees the opportunity to avoid monitoring in certain situations, such as using a non-monitored phone at designated times in order to make personal phone calls. ii. Taking this approach does not solve all concerns about monitoring. If you tell the employees which will be monitored, they are sure to be on their best behavior. 1. This effect of employer monitoring is termed the “Hawthorne Effect”: workers are found to be more productive based on the psychological stimulus of being singled out, which makes them feel more important. 2. Random, anonymous monitoring may better resolve the employer’s concerns. iii. Perhaps the most effective means to achieve monitoring objectives while remaining sensitive to the concerns of employees is to strive towards a balance that respects individual dignity while also holding individuals accountable for their particular roles in the organization. *Chapter Objective 13 Addressed Below* d. Developing a Monitoring Program: i. A monitoring program developed according to the mission of the organization (for example, with integrity), then implemented in a manner that remains accountable to the impacted employees, approaches that balance. ii. Parameters for a monitoring policy: 1. No monitoring in private areas (e.g. restrooms). 2. Monitoring limited to within the workplace. 3. Employees should have access to information gathered through monitoring. 4. No secret monitoring—advance notice required. 5. Monitoring should only result in attaining some business interest. 6. Employer may only collect job-related information. 7. Agreement regarding disclosure of information gained through monitoring. 8. Prohibition of discrimination by employers based on off-work activities. iii. These parameters allow the employer to effectively and ethically supervise the work employees do, protect against misuse of resources, and to have an appropriate mechanism by which to evaluate each worker's performance, thus respecting the legitimate business interest of the employer. 1. Global organizations such as the International Labor Organization (ILO) support these parameters for monitoring. *Refer to Table 7.4 Here* iv. Philosopher William Parent conceives the right to privacy more appropriately as a right to liberty and suggests the following six questions to determine whether an employer’s acts are justifiable or have the potential for an invasion of privacy or liberty: 1. For what purpose is the undocumented personal knowledge sought? 2. Is this purpose a legitimate and important one? 3. Is the knowledge sought through invasion of privacy relevant to its justifying purpose? 4. Is invasion of privacy the only or the least offensive means of obtaining the knowledge? 5. What restrictions or procedural restraints have been placed on the privacy-invading techniques? 6. How will the personal knowledge be protected once it has been acquired? v. Both of these sets of guidelines may also respect the personal autonomy of the individual worker by providing for personal space within the working environment, by providing notice of where that “personal” space ends, and by allowing access to the information gathered, all designed toward achievement of a personal and professional development objective. VI. Regulation of Off-Work Acts *Chapter Objective 14 Addressed Below* a. Regulation in At-Will Environments: The regulation of an employee’s activities when she or he is away from work is an interesting issue, particularly in at-will environments. i. Even employers of at-will employees must comply with a variety of statutes in imposing requirements and managing employees. ii. New York’s lifestyle discrimination statute prohibits employment decisions or actions based on four categories of off-duty activity: legal recreational activities, consumption of legal products, political activities, and membership in a union. iii. Across the nation, there are other less broad protections for off-work acts. A number of states have enacted protections about the consumption or use of legal products off the job, such as cigarettes. b. Smoking: Currently abstention from smoking cannot be a condition of employment in at least 29 states and the District of Columbia. i. Some companies have sought to encourage employees to quit smoking by offering programs. Others have chosen to punish employees for smoking 1. Example: In 2011, Macy's instituted a $420 annual health care surcharge for employees who smoke. c. Weight: Outside of Michigan and six cities, employers are not prohibited from making employment decisions on the basis of weight, as long as they are not in violation of the American with Disabilities Act (ADA) when they do so. i. The issue depends on whether the employee’s weight is evidence of or results from a disability. If so, the employer must explore whether the worker is otherwise qualified for the position. 1. Under the ADA, the individual is considered “otherwise qualified” if she or he can perform the essential functions of the position with or without reasonable accommodations. 2. If the individual cannot perform the essential functions of the position, the employer is not subject to liability for reaching an adverse employment decision. ii. Employers should be cautious since the ADA also protects workers who are not disabled but who are perceived as being disabled, a category into which someone might fall based on his or her weight. d. Marital Status: Laws that protect against discrimination based on marital status exist in just under half of the states. i. Though workers might be protected based on marital status, they are not necessarily protected against adverse action based on the identity of the person they married. ii. For example, some companies might have an anti-nepotism policy, or a conflict-of-interest policy under which the employer refuses to hire or terminates a worker based on the spouse working at the same firm, or working at a competing firm, respectively. e. Workplace Dating: Since about 40 percent of workers have dated an office colleague, policies and attitudes on workplace dating have an especially strong potential impact. i. Only about 13 percent of workplaces have policies addressing workplace dating. ii. In McCavitt v. Swiss Reinsurance America Corp., the court held that an employee's dating relationship with a fellow officer of the corporation was not a “recreational activity” and reaffirmed the employer’s right to terminate a worker on the basis of romantic involvement. iii. The court agreed with the employer that termination was permitted since dating was not a recreational activity, and therefore not protected from discrimination. iv. While concerns about workplace dating used to surround issues of sexual harassment, they are more likely to involve apprehensions about claims of retaliation after a relationship is over. v. However, contrary to the court’s holding in McCavitt, not everyone agrees that the most effective response to the discovery of an illicit relationship is termination of the individual in power. Decision Point To Date or Not to Date This Decision Point addresses Stephanie Losee and Helaine Olen’s questioning of the Red Cross’s termination of its former president, Mark Everson. Everson was fired, after just six months in the position, when it was found that he had a personal relationship with a subordinate. Students are presented with the following challenge: Assume you are charged with drafting your organization’s policy on workplace dating, in which direction will you tilt with regard to its management of this issue? Utilitarian, such as Losee and Olen, or more in line with the 12 percent of workplaces that simply prohibit workplace dating in order to have a clearer line of demarcation? If you opt for the former, what ethical issues do you anticipate and how do you plan to respond to them since planning ahead will help you to prepare most effectively and ethically? Who are your stakeholders and what options do you have in your responses to those stakeholders in order to best meet each of their interests and rights? If you opt for a prohibition, how do you plan to enforce it? Are you willing to hire someone who is dating a current employee? Must they stop dating? What problems might arise as a result of your policy, in either direction? f. Political Involvement and Lifestyle Discrimination: i. The majority of states protect against discrimination on the basis of political involvement, though states vary on the type and extent of protection. ii. Lifestyle discrimination may be unlawful if the imposition of the rule treats one protected group differently than another. 1. The rule may be unlawful if it has a different impact on a protected group than on other groups. iii. Most statutes or common law decisions provide for employer defenses for those rules that: 1. Are reasonably and rationally related to the employment activities of a particular employee. 2. Constitute a “bona fide occupational requirement,” meaning a rule that is reasonably related to that particular position. 3. Are necessary to avoid a conflict of interest or the appearance of a conflict of interest. g. Relevant to the issues of technology monitoring discussed earlier in this chapter and emerging as a astonishingly challenging area of conflict between employers and employees, and one without much legal guidance, thus one demanding sensitive ethical decision-making, is the question of monitoring and managing employee online communications while off work. i. Example: Consider the question of off-duty use of social media sites like Facebook. Though Facebook and other social media sites may initially seem to offer a convenient environment in which employees can vent during office-work hours about their employment situation, imagine the impact when a posting goes viral. Corporate reputations are at stake and legal consequences can be severe. ii. The Ethics Resource Center's 2011 business ethics survey found that "[a]ctive social networkers show a higher tolerance for certain activities that could be considered questionable. For example, among active social networkers, half feel it is acceptable to keep copies of confidential work documents in case they need them in their next job, compared to only 15 percent of their colleagues." h. In addition, while employers are legally prevented from asking candidates about their religion or prior illegal drug use during a job interview, is it ethical for them to seek out that information through online sources when the candidate voluntarily discloses it with no connection with work? i. For instance, in various individuals’ profiles on Facebook, there is posted, “Nothing is more important to me than the values I have learned from being a Seventh Day Adventist.” ii. The prospective employer could never access this information through the interview so is gathering it in this method any more appropriate? iii. The laws on this matter vary from jurisdiction to jurisdiction. 1. There are far greater limitations on the collection of personal information in Australia, for instance, than in the United States. 2. In 2012, Illinois passed legislation that prohibits employers from requiring job candidates or current employees to submit their social networking passwords. Maryland is the only other U.S. state with a similar prohibition. iv. What ethical values should dictate? Should a single, universal value govern an employer’s judgment, or should the employer’s behaviour also vary from country to country, if it is a global operation? *Reference: “Reality Check - The Employment Relationship Begins Pre-employment”* VII. Privacy Rights since September 11, 2001 *Chapter Objective 15 Addressed Below* a. Impact of Terror Attacks on Privacy: The events of September 11, 2001, have had a major impact on privacy within the United States and on the employment environment in particular. i. The federal government has implemented widespread modifications to its patchwork structure of privacy protections since the terror attacks of September 11, 2001. ii. Proposals for the expansion of surveillance and information gathering authority were submitted and, to the chagrin of some civil rights attorneys and advocates, many were enacted. b. USA PATRIOT Act: The most public and publicized of these modifications was the adoption and implementation of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. i. The USA PATRIOT Act expanded states’ rights with regard to Internet surveillance technology, including workplace surveillance, and amended the Electronic Communications Privacy Act. ii. The act also grants access to sensitive data with only a court order rather than a judicial warrant and imposes or enhances civil and criminal penalties for knowingly or intentionally aiding terrorists. iii. The new disclosure regime increased the sharing of personal information between government agencies in order to ensure the greatest level of protection. c. Title II: i. Provides for the following enhanced surveillance procedures that have a significant impact on individual privacy and may impact an employer’s effort to maintain employee privacy. ii. Expands authority to intercept wire, oral, and electronic communications relating to terrorism and to prosecute computer fraud and abuse offenses. iii. Provides roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978 (FISA) to track individuals. (FISA investigations are not subject to Fourth Amendment standards but are instead governed by the requirement that the search serve "a significant purpose"). iv. Allows nationwide seizure of voice-mail messages pursuant to warrants (i.e. without the previously required wiretap order). v. Broadens the types of records that law enforcement may obtain, pursuant to a subpoena, from electronic communications service providers. vi. Permits emergency disclosure of customer electronic communications by providers to protect life and limb. vii. Provides nationwide service of search warrants for electronic evidence. d. Increased Monitoring: i. The act’s provisions allow the government to monitor anyone on the Internet simply by contending that the information is "relevant" to an ongoing criminal investigation. ii. The act includes provisions designed to combat money laundering activity or the funding of terrorist or criminal activity through corporate activity or otherwise. 1. All financial institutions must now report suspicious activities in financial transactions and keep records of foreign national employees, while also complying with antidiscrimination laws. e. Reactions to USA PATRIOT Act: The Patriot Act has been reauthorized three times, and elements amended, revised, and extended by several additional bills. f. Implications of Patriot Act: The Patriot Act has implications for all citizens, and has direct implications for business since it relies on many businesses for information gathering, among other requests. i. Requests for information have gone up, and organizations have responded to these requests in myriad ways. 1. Google’s privacy policy states that it will comply “with valid legal processes seeking account information” but does not indicate whether it will make any effort to notify targets of an investigation. 2. Twitter’s policy “is to notify users of requests for their information prior to disclosure unless we are prohibited from doing so by statute or court order.” 3. The ultimate issue is not only whether users know about such policy differences – about which they are informed when they clicked “agree” to the service’s terms of use - but if users care enough to impact their choices. Opening Decision Point Revisited Being Smart About Smartphones This Decision Point addresses the implications of using a smartphone in business contexts raised at the start of the chapter. Most people see a Blackberry or iPhone simply as a source of productivity, allowing them to carry a powerful computer combined with a communications device in their pocket or handbag. But smart phones – like many new technologies – also raise ethical questions. The Opening Decision Point involved miscommunication from the start. Using the ethical decision-making process, we are confronted with a scenario where the stakeholders involved perceived the situation from entirely different perspectives. Not everyone will perceive your behavior from the same vantage point, nor with the same experiential background. Some differences may be generational. Students are asked to consider the following questions: • How might you respond if you observed a colleague texting in the middle of a meeting? • Would it be different if the meeting involved just the two of you or other people? If the others were work colleagues or colleagues external to your firm? • What would you do if you received a text from a colleague in the middle of a meeting (and the colleague is in the same meeting)? • Are there new technologies other than smart phones that raise questions such as the ones discussed in this scenario? Does the use of a laptop during a business meeting raise the same or similar issues? • Did it occur to you at the end of the Opening Decision Point that perhaps your boss might have given you the benefit of the doubt and asked whether you had been using your phone for note-taking? Does that perspective impact your response at all? • When people differ with regard to the proper use of new technologies in the workplace, how should such differences be resolved? Should fans of new technologies be extra cautious? Or should those who resist new technologies be expected to “get with the times?” Instructor Manual for Business Ethics: Decision Making for Personal Integrity and Social Responsibility Laura P. Hartman, Joseph R. Desjardins, Chris MacDonald 9780078029455, 9781259060588, 9781259417856