Watch it! Your boss might be a high-tech spy

For employers, technology has made snooping on employees as cheap and easy as pumping self-service gas used to be. Want examples?

Employees accustomed to bosses monitoring their office phone conversations and e-mail now face the possibility of their instant messages coming under surveillance. Computers are making it possible for companies to monitor how long Baltimore Teamsters allow their trucks to idle. Global Positioning Systems enable employers to check the accuracy of workers’ timecards.

GPS data has led to disciplinary action against some members of Baltimore Teamsters Union Local 355, says its president, Denis Taylor. Nobody’s lost a job for exceeding limits on lunch breaks, he says. Yet.

“This has done nothing but gotten worse. Companies have come up with 50 different ways of tracking somebody,” Taylor says.

Despite growing uneasiness among workers, lawyers say most of the high-tech spying going on in workplaces around Maryland and other states remains perfectly legal. Technology has outrun the rules on how employers can use it. The most recent applicable federal law—the Electronic Communications Privacy Act—was written in 1986.

“We’re still trying to get a law on video cameras in bathrooms and locker rooms,” says Jeremy Gruber, legal director of the National Workrights Institute in Princeton, N.J.

One early adopter in the transportation industry, United Parcel Service, is pushing tracking technology faster than the marketplace. The company last year began testing its own custom-built system to monitor more than 200 measures of vehicle performance. The measures involving driver behavior, such as seatbelt use, usually are safety issues, according to UPS spokeswoman Donna Barrett.

Some driver behavior, though, directly affects company profits. Monitoring how long UPS trucks are idling could translate to a cut in fuel costs of nearly $200 annually per driver if each employee can limit idling to 24 minutes a day, Barrett says.

This year the test was expanded to 11 locations, including Baltimore, Landover and Waldorf. Teamsters have responded by negotiating protections against disciplinary action based solely on data mined by technology, says Taylor, the Local 355 president.

Union negotiators raised the same concerns two years ago when GPS equipment was introduced to the big brown trucks, Barrett says. Discipline wasn’t the purpose of either that technology or the new system. “But I’m not going to say it would never be used in that way. We have 250,000 drivers—not contractors, all employees—and there’s a ton of information you get, information that’s more accurate and objective.”

Nevertheless, she notes that Teamsters recently signed a new contract with UPS. “Obviously, this technology wasn’t a showstopper.”

In white-collar businesses, instant messaging is eclipsing employee e-mail as a monitoring target,

Says attorney Rod Satterwhite, who advises employers in Baltimore for the McGuire Woods law firm. “It can create liability as easily as e-mail can,” he says.

To help clients avoid such liabilities in recent years, Satterwhite says, he has written policies governing the content of employee e-mail and blogs. “They can’t disclose trade secrets. They can’t identify themselves as a company employee and then defame someone,” he says. “If it’s purely personal and there’s no company identification, the employer would have a hard time regulating that.”

Too many employers think those policies are enough, but they’re not, Satterwhite says. That’s because employees can readily download instant-messaging software on a workplace computer without the employer knowing about it.

Satterwhite believes that the law may be catching up with technology. Criminal courts are knee-deep in legal analysis of how technology is affecting individual privacy; this will eventually affect employment law. And in July, the Ninth Circuit Court of Appeals decided in favor of a California police officer in his lawsuit over personal text messages read by his bosses.

Both sides of these issues see a limited application of the California case and the scales of justice still tipping toward employers. Said Gruber, of the work-rights institute, “My advice to employees would be not to engage in any behaviors, or communication on an employer-issued device, that you wouldn’t be comfortable with your employer having access to. Nothing is safe.”

Carol Frey is a freelance writer based in Arlington, Va.