Question

• Discuss what the employee should do if he/she finds that surveillance breaches his/her privacy.also discuss in details thatLaws and legislation of surveillance at workplace in two countries at least and make necessary citation.   

Answer 1

• Workplace monitoring is subject to a variety of federal and state constitutional provisions and laws regarding when employees have a right to privacy and if and when they must be notified that they are being monitored.

• From a legal perspective, disclosing surveillance is the smartest tactic. Letting employees know that they will be monitored removes employees' reasonable expectation of privacy—the element that often forms the basis for invasion-of-privacy lawsuits arising under common law.

• While the basis of the privacy claim differs by jurisdiction, courts that have considered the question usually engage in a fact-specific analysis.

• They weigh the reasonable expectation of privacy by the employee and whether the employer has a legitimate business interest for conducting the surveillance.

• The fact that the reasonableness of employees' expectation of privacy usually plays a large part in a court's analysis offers further support for the disclosure of monitoring activities.

• By informing employees that their communications are not secure or that their activity will be monitored, the employer can lessen employees' privacy expectation and in turn bolster the employer's defense in court, while also lessening the impact on employee morale.

• Eavesdropping/Wiretapping. Eavesdropping and phone tapping are the most common methods of monitoring used by employers. Most people link phone tapping with some sort of police or FBI work, but it is commonplace in businesses, from retail stores to government offices. "The reason employers employ such tactics is to record the number, frequency, and destination of the calls"

• Telephone numbers dialed from phone extensions can also be recorded using a "pen register" that allows employers to identify not only the numbers dialed but the length of each call

• Electronic Mail (e-mail) and Voice Mail. Many employers monitor employees' e-mail and voice mail. E-mail provides options to employers to ask for "Receipt Request," "Priority Category" to see when employees use email, whether employees received the message, etc. With new technologies, employers can easily check employee e-mail and telephone voice mail, even after employees have deleted messages from their terminal or voice mail system. These messages are often permanently backed up on magnetic tape along with other data from the computer system. Although email is comparable to postal mail, "there is no federal law that prohibits an employer from reading any e-mail or computer file"

• Employers may also use encryption to protect e-mail privacy, which involves the scrambling of the message at the sender's terminal and unscrambling at the receiver's terminal. This primarily is used to prevent industrial "spies" from reading e-mail, but employers may still have access to the unscrambled messages

Federal and state laws

• The two main restrictions on workplace monitoring are the Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. Section 2511 et seq.) and common-law protections against invasion of privacy. The ECPA is the only federal law that directly governs the monitoring of electronic communications in the workplace. Congress passed it in 1986 as an amendment to the federal Wiretap Act. Whereas the Wiretap Act restricted only the interception and monitoring of oral and wire communications, the ECPA extended those restrictions to electronic communications such as e-mail.
• At first glance, the ECPA appears to prohibit an employer from intentionally intercepting its employees' oral, wire and electronic communications. However, the ECPA contains several exceptions to this prohibition, and two of these exceptions are of particular importance to employers. The first is commonly known as the business purpose exception, which permits employers to monitor oral and electronic communications as long as the company can show a legitimate business purpose for doing so. The second is the consent exception, which allows employers to monitor employee communications provided that they have their employees' consent to do so.