Forwarded From: ama-gi ISPI <offshoreat_private> ISPI Clips 4.48 News & Info from the Institute for the Study of Privacy Issues (ISPI) Saturday September 19, 1998 This From: US News Online, September 15, 1998 http://www.usnews.com Who's watching now? Hassled by lawsuits, firms probe workers' privacy http://www.usnews.com/usnews/issue/970915/15priv.htm BY DANA HAWKINS In the secrecy of night, a pair of private detectives meet their client at the back entrance to the communications company he owns. The man opens the door; they all slip inside and proceed to a worker's cubicle. The investigators sift through his file cabinets, desk calendar, Rolodex, and voice mail. They check a company caller-ID machine that recorded all the numbers he called in the past six weeks. Then they "bag" his computer, downloading information from the hard drive, where the most damning data usually reside. One of the detectives is a forensic computer analyst, who will recover E-mails and documents long ago erased. With any luck, they will find what they are looking for: evidence that the worker gave proprietary information to a competitor. The incident described above--known in the gumshoe trade as a "midnight raid"--is true. Similar intrigue takes place regularly in workplaces across the country, for a variety of reasons: to collect evidence to fire an employee, to defend against a discrimination lawsuit, to catch a company thief. "We do them all the time," says Christopher Marquet, senior director for global development at Kroll Associates, a leading investigative firm. "We have 22 offices worldwide, so there's probably always one going on somewhere." (Kroll was not the agency involved in the case above.) Employee investigations--which sometimes lead to a raid--have increased an average of 30 percent for each of the past three years, according to Kroll and its competitors. Keeping watch. Companies not only have stepped up midnight raids but no longer hesitate to seek information on what was once assumed to be the private side of workers' lives. More than one third of the members of the American Management Association, the nation's largest management development and training organization, tape phone conversations, videotape employees, review voice mail, and check computer files and E-mail, a recent AMA report states. Scrutiny of job applicants has intensified, and this has fueled a boom in companies that do database searches of applicants' credit reports, driving and court records, and even workers' compensation claims. Personal behavior is no longer off limits: Some firms have adopted rules that limit co-workers' dating. Others ban off-the-clock smoking and drinking. Many companies regularly test for drugs. Much of this occurs without the workers' knowledge. While companies say they collect information on their employees to comply with the law and protect their business interests, a recent survey of Fortune 500 companies showed that nearly half collect data on their workers without informing them. A majority said they share employee data with prospective creditors, landlords, and charities. "Many of these invasions--unthinkable a few years ago--have become institutionalized," says Craig Cornish, co-chair of the American Bar Association's workplace-privacy group. Why has the worker's sphere of privacy shrunk? Employers say they feel intense pressure from lawsuits of every sort. The number of sex, race, disability, and age-discrimination suits brought by workers has more than doubled from over 10,700 in 1992 to 23,000 in 1996. Some of the cases focus not on management misbehavior but on what employees do to each other. For instance, workers assaulted by co-workers have sued their employers for negligent hiring. Morgan Stanley, a big Wall Street brokerage, was sued for $70 million by workers over racist jokes that appeared on the company's E-mail system. The plaintiffs claimed the jokes created a hostile work environment. The case was dismissed last month. "Nothing would please my clients more than to never again read an employee's E-mail," says Jay Waks, a New York attorney who represents corporate clients in employment litigation. Still, he says employers have no option but to protect themselves: "If they're going to be held liable, they'd better monitor." Skyrocketing medical costs provide another incentive to probe, especially for companies that self-insure. Denise Nagel, the founder of the National Coalition for Patient Rights, says insurers have told her of employers that routinely check into workers' medical records. Nagel says they tell her "it happens all the time." Meanwhile, technology--particularly new software that can track and record everything workers do on their computers--is making it easier to peek over a worker's shoulder. And in most places, it's quite legal. State laws vary widely, and few federal statutes address workplace privacy. The FBI needs a court order to tap a phone line, for instance, whereas employers have far more freedom to listen in. While the benefits for employers are undeniable, there are obvious hazards for workers. Careers may be damaged when investigators overreach, when mistakes are made, or when managers are too aggressive in enforcing company rules. To thwart sexual harassment charges, which have risen from 6,100 in 1990 to 15,300 last year, many companies have adopted "antifraternization," or antidating, policies. Wal-Mart is one such company. The giant retailer says the policies were also adopted to prevent favoritism, either real or perceived. Still, Joe and Tiffany Peters, of Dodge City, Kan., got snagged in Wal-Mart's attempt to pre-empt problems. The newlyweds, both 24, met a year ago while working at the local Wal-Mart. Joe, who was then an assistant manager, says he followed company rules, told his boss he wanted to date Tiffany, and got an OK. Since Wal-Mart requires one member of a couple to quit or transfer, Tiffany gave two weeks' notice to leave. But on Tiffany's last day at work, she says, two district managers grilled her for two hours. She was reduced to tears, she says. "They asked explicit questions. They wanted me to say we'd had sex," she claims. "The woman kept asking over and over: `What kind of sex was it?' It was the worst thing that ever happened to me." Wal-Mart spokesperson Daphne Davis contests Tiffany's account. Davis would not say what questions the managers asked--only that they were necessary to determine whether Wal-Mart's policy was violated. Nothing personal. More companies are drug testing, too, hoping it will lead to improved worker performance and lower medical costs. In 1987, only one fifth of corporations drug tested workers, usually when drug use was suspected. But according to a 1996 survey by the American Management Association, more than 80 percent of corporations drug test workers, usually at random. Similarly, drug testing of job applicants is now commonplace. "If you had told people 20 years ago they'd have to drop their pants and pee in a jar to get a job, they'd have thought you were crazy," says Louis Maltby, director of the American Civil Liberties Union's workplace-rights office. What worries some about drug tests is their reputed inaccuracy. John P. Morgan, professor of pharmacology at the City University of New York Medical School, says the false-positive rate on a typical unconfirmed drug test is 10 to 15 percent. Evelene Stein says hers is one such case. For years, Stein submitted to random urine tests given by the Crowne Plaza Nashville, where she was banquet captain. Then three years ago, the 53-year-old grandmother tested positive for drugs--the company would not tell her which drugs--and was fired. Stein believes the lab mishandled her urine sample. To try to prove her innocence, Stein says, she offered to pay for another test. The company refused, and many months passed before she found another job. "They ruined my reputation," says Stein. The Tennessee Supreme Court ruled the state's constitutional guarantee of privacy did not apply to private employers. Ralph Tipton, a spokesman for the hotel, declined to comment on Stein's case. He says the hotel policy "gives employees a safer, more productive place to work." Some of the greatest strides in worker monitoring have come through technological advances. Nurses in over 200 hospitals now wear badges connected to infrared sensors to track their whereabouts. One badge manufacturer, Executone Information Systems, says they are designed to help route nurses to the patients who need them. The Tropicana Casino in Atlantic City is testing an infrared detection system that alerts the boss when workers leave the restroom without washing their hands. Electronic-mail monitoring is even easier. In 1993, a Macworld study showed that 9 percent of companies searched employee E-mail. Last year a survey by the Society for Human Resource Management found that 36.4 percent of respondents search employee E-mail for business necessity or security. More than 70 percent said an employer should reserve the right to read anything in the company's electronic-communications system--while just one third have an E-mail policy. "The number of corporations who monitor E-mail but don't tell employees is appalling," says Beth Givens, director of the Privacy Rights Clearinghouse in San Diego and author of The Privacy Rights Handbook. Flagging phrases. Such practices have fueled the growth in the worker-monitoring business. One of the latest products is called Assentor. The software, created by SRA International, uses language patterns to allow corporations to search workers' E-mail for more than just simple key words. Financial-securities firms are testing the software to finger brokers who trade insider information, by flagging phrases like "hot little tech stock." The software--geared to comply with a Securities and Exchange Commission proposal that would require the monitoring of E-mail between stockbrokers and their customers--will be available later this year. SRA plans to develop similar programs for the banking, law, and health care industries. At other places, Big Brother is literally watching. Salem State College in Massachusetts had installed a video camera in an office, it says, for security reasons. But the college didn't tell its workers. Gail Nelson, a secretary, says she was particularly embarrassed by the videotaping because she often changed out of her work clothes after she closed the office for the day. Nelson complained and has hired an attorney, even though her state has no statute specifically prohibiting such videotaping. "Years ago, the law didn't recognize a wife could be raped by her husband," says Nelson. "But that didn't mean wives weren't raped by their husbands." Employees may think their privacy is protected by the Fourth Amendment, which protects against unreasonable searches and seizures. But courts have ruled that the Constitution, which offers some protection to government workers, doesn't apply to employees of private firms. And while some states have passed privacy legislation, the protections are scattershot. North Carolina, for example, prohibits the tapping of telephone lines, yet allows employers to test for HIV in their annual physicals. Vermont prohibits HIV testing as a condition of employment but has no law against testing for genetic diseases. Few states have legislation to protect workers from being secretly videotaped or from employers' reading their E-mail. Even so, workers have gained some new protections. Beginning next month, the Fair Credit Reporting Act will require employers to get written consent from job applicants before requesting their credit history. Just last week, the United States Court of Appeals for the 10th Circuit in Denver upheld a lower court's decision that said employers cannot, under normal circumstances, force workers to disclose the prescription drugs they take. Finally, President Clinton recently said he intends to offer legislation that would forbid disclosure of genetic information to employers and insurers. Several similar bills are already before Congress. While workplace-privacy experts support the ban on genetic-information disclosure, they fear that if such legislation passes, politicians will then consider the entire issue resolved. And the far more common, yet less dramatic, encroachments on worker privacy will continue. -o- Subscribe: mail majordomoat_private with "subscribe isn". Today's ISN Sponsor: Repent Security Incorporated [www.repsec.com]
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