Dan Eaton, San Diego business law attorney, Seltzer, Caplan, McMahon & Vitekin
Related Story: Privacy Rights vs. Employee Tracking
CAVANAUGH: I'm Maureen Cavanaugh, it's Thursday, April 25th. Our top story on Midday Edition, job growth continues in San Diego. In fact, earlier this week, we talked about a 4-year low in unemployment in our region. From the time the great recession started till now, the nature of the workplace has been changing. As companies try to do more with less, more of them are looking to the so-called last frontier to improve profitability, that is closely monitoring employees. A recent 2-part report in the LA Times explored how employers are tracking and monitoring employees in the workplace and out. My guest, Dan Eaton is a San Diego law attorney with, Seltzer, Caplan, McMahon & Vitekin.
EATON: Good to see you.
CAVANAUGH: You deal primarily in business law and work with many business clients. What are the reasons businesses might want to monitor the actions and correspondence of their employees?
EATON: Well, there are a couple of reasons. One, as you said in the excellent opening that you did, to get more efficiency, to get greater productivity to, get employees to do more with less. Another is if they suspect that an employee is engaged in some sort of wrongdoing. That was the case in New York out of 2008 where a public employee in the labor department in New York was suspected of falsifying time records. And the employer put a GPS on his car and found out that in fact he was doing some personal things on company time.
CAVANAUGH: What are some of the new things that businesses are doing to keep track of and checkup on employees?
EATON: Well, some of the new things in the sense that they'ring used more aggressively include monitoring key stroke, not just what you say, but monitoring keystrokes on your keyboard, using video surveillance in some extreme cases where extreme misconduct is suspected. Using GPS itself to track whereabouts, not only for misconduct, but also for productivity. We are in the making of the brave new world, that is an uncharted galaxy that the law is struggling to keep up with. What's interesting, this very day, talk about cutting-edge, Thursday, today, the U.S. Senate judiciary committee is holding a hearing on revisions to a 1986 law, the electronic communication privacy act, about what the government needs to do to get access to stored electronic communications from private citizens.
CAVANAUGH: Yes, a couple of articles came out about that a little while ago, and the fact that this law was made in 1986 when electronic correspondence was not that popular. This law basically allows law enforcement to look at an awful lot of what you of online without getting a court order; is that right?
EATON: Without getting a court order, that's exactly right. And it really only -- it says that the government can get anything that is older than six months simply by issuing a subpoena, which doesn't require a court order. And this -- they're looking at legislation to require the government to get some kind of a court order regardless of how old the information is. We're not just talking about e-mail anymore, you're talking about pictures and various other documents that are stored in the cloud. New York Times article today on this said that in 1986, the cloud was mere vapor in the sky. I thought that was clever.
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CAVANAUGH: As our conversation goes on, I think we're going to be able to see that businesses even have a wider latitude, employers have a wider latitude than law enforcement does when it comes to checking up on what their employees are doing.
EATON: They really do. And that's the interesting thing. As I've said on this program, several years ago and off thereafter, California has a constitutional right to privacy. Well, that limits what the government can do. But that's not true. It applies to private employers too, except that cases are very clear that can employers do have a right if they give their employees some sort of a notice through a policy or what have you that they are being monitored to monitor and track all kinds of information that is going through the employer's electronic equipment. The computer, company-issued electronic devices like PDAs, Blackberries, and a variety of different devices. People are generally aware of these policy, but in fact employers are increasingly exercising the right that they have to look at these sorts of communications.
CAVANAUGH: There's also a special emphasis on social media. What can and can't your employer do to track your presence on social media?
EATON: Is this where we get to a new law that just went into effect in January which I discussed the last time. In California and about five other states, an employer cannot ask or require an applicant or employee for their private password for their social media accounts. But understand, nothing prevents the employer from look at what is publicly available. The legislative history of this law makes it very clear that it's up to individuals to check their privacy settings.
CAVANAUGH: Now, what if you've started a Facebook or Twitter account, especially for your job? For marketing purposes. Who owns that social media account?
EATON: It's fascinating. It's unclear. But a case decided just in late March of this year dealt with the issue of whether an employer, or in this case a company that had been founded by a woman who left the company, the company could take her linkedN account and came the same URL, but switch it to the new CEO. And the Court held that there is at least a question about whether you can do that, and whether the former employee has an ownership right to her name. But this is not limited to private employers. The Vatican itself, and interestingly enough, was very, very prescient because we just had a new pope. And the Vatican it was very clear owned the right to the papal Twitter account. So when the new pope left, he did not take his Twitter account with it him! But this is something they anticipated. This is something that belongs to the Papacy, not the individual pope. So the more companies do to tell their employees who actually owns these social media accounts the better position they are going to be in to protect it when and if the employee leaves.
CAVANAUGH: Our personal lives and business lives are becoming so intertwined, you're using the same equipment to do personal correspondence as you are to do business correspondence. Some people have company-issued phones that they're making business phone calls on, private phone calls on. So has the law even begun to sort out this morass?
EATON: In a way it has. You just raised an issue of the blur between what is business and what is personal. What if you go on your social media account and you vent about your workplace conditions, and you're complaining? Is that somehow protected? Can you be fired for talking negatively about the boss on Twitter? The national labor relations board, typically you think of that as dealing with unions, but they have said if you're going on there for the purposes of mutual aid and protection, you're gripe think in a way that invites other workers to talk about improving workplace conditions, your employer can't take action against you. But if it's just a personal grievance, if you're just venting about how awful you think the customers are, that's not protected. But where exactly is that line? The national labor relations board has issued several different guidances numbering literally in the 10s, maybe 100s of pages, and I'll be darned if I can say whether a case falls on one side or the other.
CAVANAUGH: What if you are on your company computer but you're using your personal e-mail account? Does your employer have the right to view those e-mails that you are creating on your personal e-mail account on their computer?
EATON: Maureen, that raises a question that was addressed in the homes versus Petrovich development cases out of 2011. And in that case, there was a question of whether the employee complaining to her attorney about alleged sexual harassment, whether the employer could look at that e-mail, the employer having told her that it was monitoring the e-mail. And the court of appeals said yes, it could, because sending an e-mail over a company computer knowing the employer could watch is the equivalent of talking to your life in a conference room with the door open, knowing your employer could pass by, but not expecting for him or her to overhear it. It comes down a lot to a reasonable expectation of privacy and how much the employer notifies its employee that the employee is being watched.
CAVANAUGH: Let's go back to the instance you referred to in the LA Times article where this employee was taking too long to get to meeting locations. The employer was not believing what he was saying about it. So the employer put a GPS device on the employee's personal car without telling him. Now,ing this is in New York State. The employee sued when he finally found out. But the judge found that the employer had a right to monitor employee behavior if it's relevant to employee performance. Now, I remember you and I talking about a case that went before the Supreme Court that law enforcement could not put a GPS on a car without getting a warrant.
>> That's right. The U.S. Supreme Court. You say wait a minute! What's going on here? How could do you that? And it was interesting. It was a New York midlevel court that came down in 2011. And it was a 3-2 vote. But what the Court said was "a search conducted by a public employer investigating work-related misconduct of one of its employees is judged by reasonableness both as to the inception and scope of the intrusion. Clearly they had a responsibility to curtail the suspected employee's misuse of taxpayer money, and that he was wasting money by using the company car and company time for personal business." But none the less, taxpayer time, that's the issue. And the Court said, no, you know what? You have a right to keep track of that. Course they didn't tell him they were putting a GPS on him and said that was okay.
CAVANAUGH: All of these individual instances are fascinating. But when you take an overview of this, do you think this increased monitoring is putting a strain on the employer/employee relations?
EATON: The LA Times article is saying that, is this creating stress, I used to love my job but now not so much. But not all employers are doing it, and to the extend this becomes an issue and makes particular employers less attractive as a place to work, that exerts a pressure that the law never could. To the extent this becomes more and more widespread, it'll be harder and harder to find choices that don't involve at least some level of potential employer surveillance.
CAVANAUGH: Are employers that you are aware of using any information that they're gathering in this surveillance to actually improve the workplace in any way?
EATON: Well, certainly they are when you talk about improving the workplace in terms of improving productivity. That's fascinating is that if you go to your supermarket, you may notice certainly if your cashier shares it with you that they are being tracked as to how long it takes for them to take care of customers. That improves the line and how quickly it moves. But it also improves things from the employer's perspective because they're getting more done with less. And that enables them to keep costs down, and it has to be said, profits up. So yes, there is an improvement, but it depends on whom you ask. Because from the employees' perspective, they're feeling more stressed, and they're just not enjoying the benefit that they felt they had by doing their jobs without being watched as closely as they know of.
CAVANAUGH: You know, we have a patients' bill of rights, a homeowners' bill of rights, it sounds like if this continue, we might have something like a workers' bill of rights. It seems that it does add stress if someone is going to go into the workplace and basically be monitored their entire eight hours on the job.
EATON: Well, there is that. And what about social media, which is beyond the eight hours of the job? Just last week, the House of Representatives voted down a proposal that would have made a federal law out of California's law with respect to the right to ask for your personal password. But you are seeing a sense that at some point, 1984 is going to look an awful lot like 2013 and 2014. And the question is whether there will be a blowback or acceptance.
CAVANAUGH: My last question to you, what's your advice to workers who are concerned about the actions of being monitored by their employers? Is it helpful to discuss those concerns with your employers?
EATON: Well, certainly you can discuss the concerns with the employer. But the best way is to make sure that what you are doing at work is not something that you want your employer to see. Use your own personal devices. Understand that the homes versus Petrovich case only dealt with using your company-issued e-mail account. It didn't say anything about using your personal e-mail account which is probably offlimits to your employer depending on whether it goes through the company system or not. But the bottom line is, be very careful about what you do at work. Somebody may very well be watching.