Have a Cell Phone, Courtesy of Big Brother

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Is your boss watching you at work via your office-issued electronic device? Probably. And is that legal? Yep!

Last week, New York City School Chancellor Joel Klein fired John Halpin, a construction supervisor who has worked for the Department of Education for 21 years, for repeatedly leaving work early. (Ironically, it turns out that he did show up early for work quite frequently. Maybe he needed a new schedule?)

Administrative Law Judge Tynia Richard found him guilty of giving false time records, the evidence showing that he left work early as many as 83 times(!) between March 2 and August 9, 2006. “This individual was getting paid for not working,” schools spokeswoman Margie Feinberg told The New York Post.

Where did the proof come from? The employee's cell phone. It turns out that the company-issued cell phone contained a Global Positioning System (GPS) tracking device. It was also noted that Halpin's time cards always appeared to be stamped from the same machine, though he was expected to work in different locations each day.

Halpin claims that he was never informed that the cell phone would monitor his movement when he accepted it in 2005. Does he have a case? Not really. Judge Richard stressed that the Department of Education didn't need “to notify its employees of all the methods it may possibly use to uncover their misconduct.”

Frankly, I'm not surprised. You accept a cell phone from your employer and you're shocked that it might be used to track you through global positioning technology? Please, I don't think so. The guy was cheating. His employer found out using a perk they gave to him.

It seems like no reasonable expectation of privacy exists in the workplace, especially on employer-owned equipment like computers and phones. According to a November 12, 2006 Chicago Sun-Times article, GPS is used by eight percent of companies to track vehicles, but is starting to find use monitoring office workers. As it turns out, only two states — Connecticut and Delaware — require employees to be notified that GPS devices are being used to monitor their activities.

“To a certain degree, as long as it's the employer's tools you're using, the employer rules,” Leslie Ann Reis, a workplace privacy expert at John Marshall Law School, told the Chicago Sun-Times.

In a 2005 survey of 526 companies by the American Management Association, three out of four companies admitted to monitoring the Web activities of its employees, half the companies admitted to reviewing their computer files and monitoring phone numbers dialed, and half admitted to using video monitoring, up from only 33 percent four years ago. By 2010, the video surveillance technology will be an $8.64 billion business, according to the research company Frost & Sullivan.

But is this all being done in secret? Not really. The American Management/ePolicy Institute says that 80 percent of employers using monitoring devices notify their workers that their for computer content, keystrokes and keyboard time will be recorded; 82 percent notify them that computer files are reviewed; 86 percent notify them that e-email is being watched; and 89 percent tell them that Internet visits are monitored.

And how much further will it go? Think biometrics, where minuscule radio frequency identification (RFID) chips, the size of a grain of rice, will be inserted under your skin, allowing an employer to track your fingerprints and voice pattern. And for now, anything and everything you do on your employer's computer could be used against you.

“The computer system is the property of the employer and as such the employer has the right to monitor Internet activity and email,” Nancy Flynn, executive director of the ePolicy Institute of Columbus, Ohio, told the Pittsburgh Post-Gazette in a March 12, 2006 article by Patricia Kitchen. “Employees should have no reasonable expectation to privacy.”

There is very little law regarding electronic employee monitoring, and the law that does exist is unsettled. The U.S. Constitution, state constitutions, federal and state statutes do not provide much guidance on privacy rights in the workplace, especially in the private sector.

The main statutory law in this field is the Electronic Communications Privacy Act of 1986, which “prohibits the intentional or willful interception, accession, disclosure or use of one's electronic communication,” but it has a lot of exceptions when it comes to employee monitoring. Because the law is really just an amendment to the federal wiretapping law, it will rarely protect employees.

So why exactly are employers resorting to these measures? Ask and you'll get a long list of reasons: to track down sexual harassment cases, accidents, violence, criminal activity and employee laziness. And in lawsuits, employers are resorting more often to electronic evidence.

At the time I'm writing this, a group of cab drivers in New York have haphazardly gone on strike to protest the addition of GPS devices to their cars, allowing the taxi commission to monitor where they are at all times. The technology will put video screens in the back of cars, allowing riders to watch their route or even television, and text-messaging devices in the front, allowing drivers to contact the commission for directions. Clearly, this technology is spreading.

Bottom Line:
1) surveillance cameras are everywhere — corporations, government buildings, schools, elevators
2) never take stuff from your employer (supplies and such)
3) remember that your employer can check out your emails (it's their property after all!)
4) with blackberries, pagers, and instant messaging, it's hard to take the “off” out of office!


Ohio Company Implants Security Chips Into Employees
Cabs Are on Strike, but Are on the Street, Too
• Kitchen, Patricia. “They’re Watching You: Employer Surveillance of Workers and Property Extends Further Than You Think." 12 March 2006. Pittsburgh Post-Gazette. At G-1.


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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.