(00:00:24) Good morning. Welcome to midday on Minnesota Public Radio. I'm Gary eichten glad you could join us this week. As you know here in Minnesota Public Radio. We've been (00:00:31) focusing on the issue of privacy (00:00:33) during our series the surveillance Society. We've touched on a number of different areas where surveillance and information-gathering intersect with a person's expectations of privacy today on. Midday. We're going to zero in on the workplace now surveillance (00:00:50) of employees is (00:00:51) certainly not new back in the 19th century Factory owners often intruded in the personal lives of their employees imposing nightly curfews requiring Church attendance in the like and by the turn of the century Henry (00:01:03) Ford took the (00:01:04) employer-employee relationship to something of a new level literally spying on employees to find out how they were spending their free time. So in a sense the issue of workplace privacy is nothing new, but there's no doubt that it's become a bigger issue as the technology to monitor employees has The more and more sophisticated we've been joined today by a couple of experts in this field Greg Corwin and Richard Ross, but first of all, here's Minnesota public radio's Bill Kaplan with an overview of the issue of workplace privacy drawing the line between protecting corporate interests and respecting (00:01:40) worker privacy has never been harder many companies decide. It's in their best interest to permit a reasonable amount of personal use of company phones and email but firms can be sued if their employees use the company's email or internet access to bring offensive material into the workplace technology makes it possible to keep close track of employee activities even down to the individual keystroke, but in an era of tight labor markets companies have to balance vigilance against the Specter of Big Brother Jack Sheehan is a spokesman for Twin Cities based General Mills, which (00:02:11) tells employees their emails and web use may be subject to monitoring. We would not want the perception among employees that their every single move is being watched. Nobody wants to work under conditions like that. Certainly, we don't want to do that at General Mills. However, if it is in our interests and if it is in the business interests, we have the capability and and the right if we so desire to pay closer attention to what people do on email and on the internet monitoring May discourage (00:02:42) inappropriate use of electronic communications, but it can also cause a chain reaction of unexpected consequences Kenneth Goodpasture coach professor of business ethics at the University of st. Thomas in the Twin Cities found a company willing to divulge its experience in exchange for anonymity using the Alias water be toys goodpaster turned the company story into a case study for students concerned about preserving Trade Secrets. Led the company to begin tracking employee use of the internet good pastor says no security concerns emerged after the first week (00:03:13) much to their surprise. There were significant number of employees who were accessing sites that were inappropriate either because they were pornographic or because they were Ejection herbal another ways and in particular there was one employee who apparently had been logged on for eight solid hours in one day to a clearly point of graphic site and the site was clearly spelled out on the printout personal web surfing on company time appears to be on the rise one (00:03:43) survey conducted by a firm that makes tracking software suggests workers non-work-related surfing Rose from 15 to 30% of total internet use in the last year at water be toys good pastor says the revelations about workers web browsing LED security officials to reverse course and argue for scrapping the monitoring. They said there wasn't enough of a security risk to justify what they were finding (00:04:06) out but good pastor says they could not turn back the corporate general counsel saw in this another kind of danger that hadn't even crossed their mind the computer logged onto the pornographic website was (00:04:18) potentially visible to other employees good pastor says the company could not just Or a situation that could open the firm to charges of creating a hostile work environment. (00:04:28) Once they caught problems that were arguably illegalities or potentially so then simply deciding well, we're not going to monitor any more with the knowledge that these activities were going on would have put the company in a very precarious position if there had been a lawsuit water be toys fired (00:04:52) the worker with a taste for pornography (00:04:54) someone who had been in good (00:04:55) standing and decided to continue keeping tabs on internet use for the time being water be is not alone Xerox installed a new monitoring system last spring and is fired at least 40 employees for looking at pornographic websites while on the job John Roberts an attorney in Minneapolis says companies are often shocked by what they uncover. He says he's worked on a case in which a company's Engineers were casually sending their software ideas to the competition's engineers in (00:05:22) emails these Engineers we Talk to them good solid people people who were our top performers say, well, this is a hundred lines of code out of 10 million line system who cares and yeah, we trade stuff all the time and I never thought about the implications the proprietary rights the patent rights the copyright trademark trade secret issues that went along with that (00:05:46) many employment law attorneys. Say companies are generally reluctant to spy on employees. But as the potential Perils of the internet Age come into clearer Focus electronic monitoring of employees is spreading according to an American management association (00:05:59) survey in two years (00:06:00) the percentage of companies saying they check employee email computer files and phone calls grew ten points to 45% much of that from a sharp increase in Email tracking a host of companies offering monitoring software is trying to capitalize on the trend confident it will continue. (00:06:16) I think it's a phenomenal business opportunity. Matt Kramer is with Twin Cities. Based Control Data Systems The Firm sells a service. (00:06:23) Allows companies to analyze their email. Traffic Kramer says it can cost as little as 50 cents a month to keep an eye on one email box or address and worldwide the number of email boxes and use grows at rates exceeding (00:06:36) 200 million per year Matt Kramer, when you look at companies use of (00:06:41) email and their concern about how email (00:06:44) is used or could be used both from a positive and potentially a negative standpoint. This is a fantastic it business segments to be in. Hello. This is the phone Mail system dial your password and then push enter or pound. Many offices are full of Technology with security features like passwords and user (00:07:03) IDs that convey the illusion of (00:07:05) privacy but (00:07:06) voice mail or email passwords do not bar company administrators Minneapolis attorney Marshall tannic says the walls of privacy are crumbling because technology has made it easier for employers to (00:07:17) Snoop. I've had at least a half-dozen cases where people have had voicemail messages at the employers have overheard that led to them getting into trouble at the workplace. For instance one case. It was a call from a prospective employer soliciting this person to see to seek out a work at a competitive company and that was left on a voicemail an employer overheard it and took action against the employee because of it many employment law attorneys say companies should tell workers they may be (00:07:45) monitored largely because that makes it harder for someone to claim an invasion of privacy the American management association survey found that most companies (00:07:53) do inform their employees but notification about email and voicemail surveillance. (00:07:58) Actually declined in the last year last month, California, governor Gray Davis vetoed a bill requiring companies to tell workers about email monitoring (00:08:07) on the other hand the (00:08:08) Minnesota Supreme Court recognized a right to privacy for the first time last year, but it remains unclear what practical effect this ruling will have in the (00:08:16) workplace. If the law is unclear the (00:08:19) technology leaves little room for doubt Matt Kramer of Control Data System says any sense that email for example is private is an illusion. I can take (00:08:28) my machine. I can take it out in the parking lot. I can run over it with a car and throw it in the bottom of the swamp never to be recovered again, and it still doesn't matter because copies of my email that I sent to other people are sitting on servers all over the world (00:08:41) Kramer ends with a warning never write an email you'd regret seeing on a billboard with your name on it. I'm Bill Catlin (00:08:50) Minnesota Public Radio. Well joining us now to discuss workplace privacy and a take your questions are to Minnesota attorneys who have worked in this area Greg Carr. Is a labor at lawyer with Carwin and Associates Richard Ross is the chair of the labor and employment law department at frederiksen and Byron both of them serve on the governing Council of the state Bar's labor and employment law section. And of course we invite you to join our conversation as well. We're talking about workplace privacy this hour of midday. And if you have a question or comment give us a call here, six five one two, two seven six thousand 6512276 thousand outside the Twin Cities. You can reach us toll-free. That number is 1-800-222-8477 6,000 or 1-800 to for to to 828 gentlemen. Thanks for coming by today. Thank you. Thank you (00:09:39) Richard Ross. Are there do employees have any rights privacy rights whatsoever in the (00:09:48) workplace. Certainly. I think they have many rights. The problem that they have is if they if they have an expectation of privacy then I think they have good right. If they don't have an expectation of privacy, then the employer does have the right and can check the email voicemail all the things that we heard about bills report explain a little more. Well the invasion of privacy cause of action which the Minnesota Supreme Court recognized last year basically requires as do many of the statutes that deal with this issue requires that the employer put the employee on notice that they could be subject to review the emails voicemails those kinds of things. It's kind of like having a locker if you have a locker and the employer has the key to the locker you have no expectation of privacy the employers going to have access to it if the employer gives you a locker and let you use your own lock that the employer has no access to then you have an expectation of privacy. So that's that's really where the rubber hits the road. So if the employer does not tell the employee that we might want might be monitoring. They really can't monitor. I think that's right. I think the Shoots, they're both federal and state statutes that deal with electronic interception that specifically require the employer to give that advice and get it not necessarily get the consent of the employee. But just to let them know and have them acknowledge that that they have that right Greg Corwin any idea how widespread this monitoring is in here in Minnesota apparently two-thirds of us businesses report that they are involved in this and one fashion or another similar in (00:11:27) Minnesota. Our experience is that most employers of any size that have any kind of sophisticated email voicemail system monitor to some extent I think both in terms of the legal advice that they're getting and in terms of just the Practical caution that most employers have leads them to monitor. We've had cases where employees have claimed a hostile work environment because they've seen pornographic material on other people's computers. Screens that they've dialed up from the internet we've had people that have been disciplined for comments that they've made in emails that they probably never would have made face-to-face or in writing but somehow feel that they have some security or expectation of privacy in writing these e-mails back and forth and they're being disciplined the state of Minnesota took on the state professional Union of 10,000 employees for using the state's email and computer system to distribute positions on political issues that were before the state legislature and the state actually threatened to take away my clients email privileges and use of the state system because they felt that by conveying to our members over the state system positions on political issues that somehow was using the state for partisan political purposes. (00:12:51) And that's all okay, as long as they've told the employees that well we might do this (00:12:57) well in the state Ocean was that they had a very elaborate email policy and they claim that that violated their policy and that's I think where Rick gets involved and I think employers more and more need not only to notify employees, but they need to have written policies and procedures governing the use of email voicemail any kind of electronic communication. So that employees are put on notice as to what their rights responsibilities are and what are the consequences for improper use and what is improper use. (00:13:26) I think when people often think about this issue of workplace privacy, the assumption is that the employer is somehow the bad guy here and if not big brother than Big Brother's cousin or something on the other hand there is this issue of of employers having to protect themselves from the behavior of their employees. Is there any employer employer who dare not monitor their employees anymore? I think there's a real risk there, Matt Kramer. So comment it was it was very telling we routinely in litigation now get requests for copies of email that might have anything to do with the subject matter of the lawsuit and quite frankly. All of that information is stored somewhere not just on that local hard drive. It's on the backup server. And if you sent it out over the Internet, it's on somebody else's server. So all that information is available and can be used against the employer or an employee in the context of an employment litigation case. So yeah, there's a real risk that employers run by not having a policy and not enforcing that (00:14:37) policy. (00:14:40) Let's say that an employee has fired off that email and really said some nasty things about the boss or whatever, you know, they get mad and type it up to the Buddy down the hall. Is there any any way that that employee could be protected anyway, they can cover (00:14:59) themselves. They really can't and you know one thing about email is that once it's sent you can't take it back. It's not like typing a piece of paper and then throwing the piece of paper away or throwing the carbon away or throwing the copies away or or retracting or taking it back somehow once it gets into those computer systems, you lose control of it and employees have to understand that that statements comments anything. They say over the over the email that are not privileged. They're not protected. They can be sued both by the subject of the email and perhaps by the or discipline by the Lawyer as well, we've had people with marital Des to disputes all sorts of Affairs that have been going on and people making accusations back and forth all over the company's email system. And then one of the parties gets mad at the company as well for fostering this and allowing this and it was on the company's computer system and it was printed out with a company's printer and somehow the company has some liability. Now one of the interesting things that Rick talked about that I think can turn the other way is if the company does have a monitoring policy and doesn't enforce it that May subject the company to liability if the company knew that these communications were happening and took no action the company may have some liability. So if a company is going to have a policy I would argue it better. Well enforce it because having a policy and not enforcing it might be worse than not having a policy at all. Is there any difference (00:16:35) between the way the law treats? L and regular mail regular old paper mail. Oh absolutely regular old paper mail has enormous protections. If somebody receives personal mail, it's clearly personal that would be a violation of federal law for the employer to open that on the other hand if they got it at the workplace, even if they got at the workplace and it was clearly marked as personal on the outside of the envelope. I think an employer would be at Great risk to open that envelope if it's questionable then I think you're in a much greater area and probably not as but not as difficult workplace privacy is the subject this hour of midday our guests Richard Ross whose chair of the labor and employment law department at Frederickson. And Byron Greg Corwin is with us. He's a labor lawyer with Corwin and Associates. If you'd like to join our conversation, six, five, one two, two seven six thousand outside the Twin Cities one eight hundred two, four two two eight two eight and while I think of it just a reminder once again, check out our website npr.org and On surveillance Society you'll find a whole raft of information about all of the Privacy related issues were talking about this week including a Nifty quiz, which I bet you'll fail Richard. Go ahead, please. Yeah. Hi. My name is Richard and I'm a labor law practitioner Minneapolis. I have two comments one is it might be worthwhile for this the to gasps Greg and Rick to comment on the distinction between public and private employers since there are certain constitutional rights, which are accrued to them to individuals. And when the state is their employer they don't necessarily lose their constitutional. Right? And the other thing which I think is important to this discussion is the fact that federal law particularly the National Labor Relations Act provides protection for employees who get together and engage in what the law calls protected concerted activity. It simply means that have two or two or more employees get together to raise an issue. With their employer the employer cannot retaliate against them for it this protection applies, whether an employer or with student whether the employees are members of a union or not and the National Labor Relations Board, which is charged with administration's attack has held that issues of workplace surveillance, which relate directly to privacy issues are matters of mandatory bargaining which means that the employer must discuss the matter with the Union of the employees are unionized. It would also mean that if that if two or three non-unionized employees wanted to talk to the employer About the surveillance system how it's used? What happens to the tapes? That is something which the employer must discuss with them and cannot discipline them for I would believe that this is going to be extended to the other forms of electronic monitoring and I think that this is something which probably should be discussed in terms of what kind of protections the employees have in the workplace. I will hang up and listen. All right. Thanks for your thanks for your suggestion Greg. Why don't you take the Constitution - right? I (00:19:41) represent most of the public employees who are organizing the state and there's always an old saw we say in litigation and that says that that public employees don't have all the rights of every other citizen in this country, but the caller is right because the employers the government the government is bound by the Bill of Rights. It's bound by the First Amendment. It's bound by the due process clause and so it must act accordingly even with respect to its own employees. However, first of all free speech isn't unlimited first. You learn in law school is you can't fight call call out for our fire in the middle of a crowded theater and public employees Free Speech rights have been severely limited by the Supreme Court public employees can't even criticize their employers without suffering some discipline. If it goes outside the scope of their normal employment relationship. They may be able to do that. But if it anyway relates to their employment relationship they can and we're talking about use of a computer system that's owned by the public employer and supposedly to be used for official state business or official public business and using the Public's communication apparatus for partisan political activities is not protected by the First Amendment. So in many of the areas I'm talking about for example, the mape case I talked about and where we were talking about our positions on legislative issues there it was legitimate and not a violation of the First Amendment or the state to raise the concern that you're using the Apparatus State equipment and so on for partisan political reasons, so there are some limitations on public employees, even though with respect to the issue of the First Amendment and freedom of speech and assembly and so on we have rights that the private sector employees don't have because there is no State action. The the employer is not the government and therefore the due process clause in the First Amendment doesn't apply but that doesn't mean that in this area. It means that public employees have some expanded rights that their private sector cohorts don't have (00:21:50) second part of the the caller's question there sounded like he's suggesting that that if I if I'm going to fire off that email about my boss if I could get old hairy down the hall to sign on with me. We'd be in good shape. Well, actually, I'm not sure you even need to have a second person sign on Richard is correct. There is a the core of the National Labor Relations Act protects what's called? It protected activity and if an employee sends an email that deals with the terms conditions and privileges of employment, for example, the air conditionings not working well and it's too hot in here and that could be if it goes out to other employees and they and there's a response to that that could be considered protected concerted activity. And if the employer disciplines that employee for that comment that might be a violation of the National Labor Relations Act. So yes, the substance of what is communicated can give rise to protection and in addition to the National Labor Relations Act. You have the Whistleblower act you have various other retaliatory statutes such as workers compensation OSHA Etc. So there are depending on the substance of what's in the email there could be certain protections that that flow to that to the person. The second part of the of Richard's question is also Correct that I think it is. What is called a mandatory subject of bargaining in those employment situations where there is a union that represents certain employees those in that Union has the exclusive right to represent those employees with respect to all those terms conditions and privileges of employment. Well, certainly monitoring Electronic Communications email voicemail, and those things is a term and condition or privilege of employment and the employer would be obligated to negotiate in good faith over what that policy would be just like any other policy workplace privacy is our subject this our of midday and joining us here in the studio a couple of Minnesota attorneys. Who've been working in this area Greg Corwin who's with Corwin and Associates Richard Ross who's with frederiksen and Byron, and again, we invite you to join our conversation. Give us a call here at 6512276 thousand 6512276 thousand if you're calling from outside the Twin Cities, you can reach us toll-free that number. (00:24:15) Is 1-800 to for to (00:24:17) to 828 and we'll get to some more callers in a couple minutes (00:24:21) programming on NPR supported by the Pillsbury company Foundation caring for the community by giving kids a loving lift. Join Catherine land for in a panel of special guests for a discussion of Minnesota's vulnerable children live on stage at the Great American history theater in st. Paul Sunday, November 21st, the discussion immediately follows a performance of the drama The Orphan Train the story of New York children brought from the slums to the Prairies of Minnesota in the late 1800s for information on the event and an NPR member ticket discount call the history theater at 6512924323 (00:24:57) over the noon hour today. It's off to the Westminster Town Hall Forum our speaker today Robin car Maurice author of a groundbreaking book called (00:25:06) ghosts from the nursery tracing the (00:25:09) roots of islands focusing on the violent acts that some children commit. And what we know about those how for example they might be prevented that's coming up over the noon hour today right now some news headlines. Here's Mary Anne Sullivan. (00:25:25) Good morning a Texas Jury has found Sean barie guilty of capital murder for dragging a black man to death in a brutal re-skilling bury the last of three white men to be tried in the case could be sentenced to life in prison or death by lethal injection. The only sentencing options for capital murder in Texas authorities. Say five students are dead in the collapse of a huge pile of logs at Texas A&M University and rescue workers believe at least one more student may be trapped in the rubble students have been preparing for a big annual bonfire. Although Egypt has objected to transferring the EgyptAir investigation to the FBI a top justice department official is making it clear that it won't be up to the Egyptians. He tells reporters that nothing in the probe will require the approval of the Egyptian government kids are among the targets of today's Great American smokeout the annual quit smoking campaign a spokeswoman for the American Cancer. Through society says young people are seeing images of smokers in the movies that they find very seductive. She says thousands of kids experiment with tobacco everyday license tab fee cuts and more spending on road construction are part of Senate minority leader dick days Transportation agenda. They outlined his freedom to drive package today at the Capitol. These proposals are a long shot because all were rejected in some form and past legislative sessions. The Minnesota Vikings are trying to encourage some Minnesota nice at their football games police say 10 fans were arrested in 20 were rejected from the Vikings last home game, November 8th against the Dallas Cowboys in reaction to the rowdiness. The Vikings are initiating an education program for fans those arriving for the Vikings next home game November 28th against San Diego will be handed Flyers reiterating Club policy that unruly Behavior will not be tolerated and may lead to dismissal from the Metrodome. A winter storm watch is out for part of Northwestern Minnesota late tonight into tomorrow morning rain is expected to develop over Western Minnesota as low pressure pushes Eastward. The rain is expected to spread across central Minnesota tonight. It will be cold enough for some snow and West Central Minnesota late tonight rain and snow are expected to linger over Eastern Minnesota. Tomorrow high temperatures will be only in the 30s to low 40s. That's the latest from the Minnesota Public Radio Newsroom. I'm Mary Ann Sullivan. (00:27:33) Thank you Marianne 26 minutes now before noon. This is midday on Minnesota Public Radio and our subject this our workplace privacy part of our surveillance Society series that's running all week here on Minnesota Public Radio our guests this our Greg Corwin and Richard Ross, Minnesota attorneys working in this area. And again, if you have a question or comment give us a call six, five one two, two seven six thousand or one eight hundred two, four two two eight two eight before we go back to our callers is in general. Recognizing this is kind of hard to to generalize about but in general are employers more concerned about employees using their equipment improperly or using their time improperly on the job. I'd say it's probably both it's interesting technology has obviously increased productivity in the workplace enormously and the the other side to that is however, we find that people are using for example the internet for their own personal reasons to go shopping or whatever and that does take away from their productivity. So that would clearly be a primary concern. I think a secondary concern would be the improper use of the equipment. I think we can all look back before this technology explosion to telephones and the the policies typically were in most places not to use Telephone for personal business unless it was an emergency and I think even that way even though that was the stated policy. I think most employers permitted some level of personal use and when it went over a reasonable amount then employers would react and discipline. So I it's probably both the use of the equipment and the time that's lost. Hmm Joan your question, please just a quick one that you talk about email being written in stone forever. What about my kids and all the stuff they do on instant mail and chat room. Do I have a reason to be concerned about that sticking around forever? (00:29:43) Well, I think you do and that's the problem the way these computers once you put something in a system especially with the internet where it's going through many different computer systems all over the country that information is out there and and whether it's in a chat room or wherever it is, once it leaves your computer and goes on that internet. It's available to anyone who wants to who's interested I suppose and and that's what we're concerned about in the workplace. Is that Communications within a company used to be within a company or within a governmental subdivision and either you communicated through interoffice memos or through the telephone but the communication stayed within the boundaries of the company. Now the communication that you're using to communicate within the company is actually going all over the world through the various computer servers and so on and so the medium that you're using to communicate is no longer within the sole control of the company. It's going everywhere. And the other thing is that when you communicate on the phone normally only have two parties the conversation when you communicate via email anybody can pick up that email if you go to a site anyone can pick it up and everybody's got computer screens and they're all out in the open. But and people walk by and look to see what's on your screen or you look to see what's on their screen. And so the whole Matrix for communication is extended to the point where your communication is is open to anyone and as a result, I think you have to start developing a mindset that that you better be more circumstance circumspect in what you are communicating and it seems to be just the opposite that people say things on the computer because they're talking to this machine that they would never say to a person face-to-face or put in writing. So it's just the opposite (00:31:47) Joel your question, please thank you. It's more of a comment than it is a question and you're starting to get close to what I'm thinking about and that is that when an employee whether they be private or public uses the assets of the corporation or the government entity for some purpose that doesn't relate to their job. They're stealing and A compound that by using the time which the employer is paying them for to do a job for some function that doesn't relate to the job. Thanks. I'll hang up and listen. I think that that your comment is well taken. I think we have to use a rule of reasonableness. However employers have tolerated for years people using paper clips and number two pencils for their own personal purposes and what but if your if your boss was a real hard nosed he or she could crack down on you for this right? Absolutely, but I think most employers have not and so I think what's going to you know, we're in uncharted waters here, especially when it comes to the technology that we're dealing with. I think we're going to hit a level of reasonableness like we have with other supplies and equipment. I mean people come to work they use the photocopy machine to copy their personal documents. It happens and even if employers have policies one, it's almost impossible to Police because you can't be everywhere at all times and to most employers don't want to be you know, orwellian about their environment now Joel called on a car phone. I thought it sounded like if you are driving around on for your company and you've got a phone can the company monitor your calls make sure that you're just not calling radio stations, but just call it your next (00:33:36) client. Well, here's what's interesting. You know, the bar associations had a problem dealing with this and so has the Board of Professional responsibility and they've told us for example that if we're going to use a cellular phone to talk to our clients, it better be a digital one. So it is encrypted and it can't be intercepted and we've got to be careful about communicating attorney-client privileged items on the internet and in emails, we may waive that fact there's an article I was just reading before we came on here about the waiver of the attorney-client privilege by putting things on the internet. So it is a problem. And if you're on an analog cellular phone people would can and will listen in on your conversations and to the extent that you're engaged in business conversations. You could for example, you have a business Secrets or privileged information about your company and it is intercepted by someone because you were speaking on a cell phone. (00:34:28) Yeah and the technology exists. You can buy scanners today that will pick up an intercept analog cellular phones as well as cordless phones in your home. Is that legal? Well in some states it is depending on which state you're in. But if you are a party to the conversation clearly you can you can record it and make use of it. If you're not a party. Then there are some some problems now, I should point out that our midday listeners would never do anything like that Joel. For example a midday listener did call back right away to say he was on his own phone on his own time. So this job is on the line from Grand Rapids. Go ahead Joe. Thank you. I'm using my own cell phone but I did into the cigarette lighter using the battery power from the company vehicle. I'm really in a can of worms here my question comment or theory. If you will is back to the previous caller and that is if a company has a policy or lack of policy that says you are or are not allowed to use paper clips computers, etc. Etc. If you are allowed to use it, where are your first amendment rights, since you have permission to use these things for personal use or not? And you know, that seems to be the question for me to ponder. I'll hang up and listen. Thank you very (00:35:50) much. I'll remember that in the private sector. You don't have First Amendment rights, you're working for a private employer. They're not bound by the First Amendment. So companies can have rules and regulations as long as they're reasonable. And one of the things I want to point out too is when you talk about enforcing this some of our callers have said, well the company should enforce this policy. Clay, there has to be uniformity in any kind of enforcement or discipline. That's one of the things that labor lawyers on the union side. Look at was their consistency was there prior notice is the company enforcing its policy equally among all the employees and I think what Rick is saying is that you can't possibly discipline every employee every time they misuse the system. You can't be consistent. It'll look like you're picking on someone and heaven forbid. If it's a person that was in a protected class. There's all sorts of liability. If you treat them differently than our disparately from other people. So there has to be this rule of reasonableness because otherwise you're leaving yourself open for even more problems or liability (00:36:54) and we get those charges we do see them where they say. Well so and so was using the computer for personal purposes and the employer says, but we had no knowledge of that. Mmm medical records an area of great concern. I think to a lot of people I guess first of all do employers have access to all the employees Medical Records. I would say generally no on in certain circumstances. Yes, and it's limited in the context of worker compensation claims. The employer may be privy to some but not all of the medical records relative to that claim beyond that employers might have for example documentation from Physicians or medical providers as to restrictions in the workplace. Those kinds of things beyond that employers generally will not have access to most medical information in the normal circuit. So even if they're paying the freight the employer they wouldn't necessarily have your (00:37:51) records. That's correct. That's right. There's a very famous case that I used in a seminar on our new right to privacy that the Supreme Court has established in the Walmart case where an employee was a suit seeking to have a medical leave of absence and Being the reasons out and the supervisor not only called her husband to check on whether these reasons were the right reasons and the tell her what was going on but passed on these medical opinions to other people in the company without her permission so that originally the issue was legitimate that is her reasons for a leave of absence and the medical conditions, which would govern her coming back to work and in accommodations that would have to be made for her coming back to work. But then the company by spreading that information to people who really didn't have a need to know even as far as to her spouse a created a situation where invaded her privacy in the Court ruled that the company was liable. So it's not only access to the medical records. It's how they're used who sees them and how they're protected from being viewed by people who shouldn't see them. So we're a company may have legitimate. I need to know why you need an accommodation for something or why you can't be at work for an extended period of time or what kind of illness you have its use of that material and its distribution of that material May subject to liability (00:39:22) and Can employees reasonably expect that those boundaries will be observed or is that one of those things that's in theory the way it's supposed to work but in practice if your boss finds out, you've got condition X your your toast I think I think in theory and in practice to my experience it is it has been true to form. I think employers tend to be very sensitive to these issues and both the Americans with Disabilities Act the Minnesota Human Rights Act Family and Medical Leave Act all require and provide for the security and and separate maintenance of any medical records that the employer may have its limited use limited access and Only to be used as Greg reference to those people who have a need to know for example, if you have an employee that is a diabetic and the employer might need to know that for the purpose if that person goes into shock into diabetic shock so that his or her immediate Supervisor has sufficient information or the people in who were responsible know how to react to that situation. So there are circumstances where it's critical and may be life threatening for an employer to have that information again, I think my experience generally is employers are very sensitive to that and and I'm not seeing very much activity where they've it's been abused Leslie your question, please hi. Well, my this is a comment and I'll take my your response off the air but it's a bit of a story when I was living out of state. I had an acquaintance who was just fired from his job at a state job for that. They That he had Buda pornography site and he was fired immediately with no recourse given there was no way for him to argue it. He said I didn't do it. Really I mean, maybe I did it by mistake, but you know, it wasn't intentional and he was fired immediately and I think that's very scary legally, especially because just the other day when I was at work and I was on the internet for my job. I typed in a reverse directory a dress that I thought would take me to a reverse directory and it was one of those links that took me to a pornography site and how scary I immediately told my office administrator because I know that they tracked those things but it's just so legally slippery because there's no way to defend yourself against it. Is there any way to defend yourself against something like that? (00:41:54) Well, you know from a from the labor side of the picture, we always argue intent that's one of our best defenses that we didn't mean it or whatever but I don't think most employers would simply on a per se basis fire someone because there was one instance of access to some pornographic site. I think they would look to the frequency of the violation. I think they would look to how serious it was. I think they would look to see what the effect on other employees were that other employees see that site but single occasion for a very limited period of time that's that's very unusual that you would see a discharge situation there. There's either more to the story or you have a employer that needs to get some (00:42:43) advice. I would agree with that. I think there's another issue here that we haven't addressed and that's unsolicited emails that come to you in your in your office and some of them just have narratives and some of them have attachments and you don't know what they are. You open it up and all of a sudden there is something that could be considered pornographic inoffensive so on. The city males are another problem. Let's go back to the phone. So mark your question. All right, we just want to make two comments one. It's easy to assume that you're not supposed to use equipment. But if you look at the state of Minnesota, it's perfectly legal. It's in the employee manual for an employee to make local phone calls using a phone. It's not legal to make long-distance calls that an incur cost and with internet service where you're not increasing costs when you use it by and large estate has agreed people. Can you can use it second thing is It is possible to encrypt messages to encrypt email messages to provide a high level of security and in work environments where people are concerned about being able to view others work screens. If that becomes a work related issue the federal government in actually in the Pentagon pioneered polarized filters for rough computer screens that only allow the person in front of it to see it. It's not as if there aren't Solutions out there for many of these problems agree. I'm probably the technology exists. I'm not familiar with the Pentagon, of course, but your comment about local and long-distance calls. I certainly defer to Greg as far as public employment. But I do know that obviously in the private sector and I'm assuming in the public sector if you make a long-distance phone call, there is a record of that and I'm private employers will if you don't have the right to make those long distance calls come back to you and say on this day. At this time you made a long-distance call to this number. Was it business related? If not reimburse us for it. (00:44:46) We just had a big controversy in state government with members of the state patrol who are all issued cell phones in misuse of them for an arrogant that could be a criminal act because there you're misusing government funds you're stealing from the government by using the the state issued cell phone for personal calls and what people have to realize is not only can you track the fact that their personal calls but you can track who there too. So in one case they were tracking a guy was calling his girlfriend and who was otherwise married and got himself into all sorts of problems. So they are these electronic means are much easier to track but there it is true that especially the government situation. There's potential criminal liability for the misuse of government property for personal use or personal gain, (00:45:37) We started this hour by noting that this is not a new new phenomena this whole business of workplace privacy Henry Ford, of course had his literally had spies out checking on people in general do employers are employers only concerned with workplace related issues or is there some danger that many employers will move Beyond whether or not you're actually showing up for the assembly line and checking on you know, your political beliefs your sexual orientation, whatever it may be I don't think employers have the resources or the desire to to do that. There are specific laws in Minnesota. For example, in other states that prohibit employers from delving into Lee legitimate non-work activities commonly referred to as the The Smokers Rights bill that allows employees when they're not working. King and not on the premises to engage in lawful activities. So I there are protections for employees. I don't think that employers ought to care actually as to what employees do off the job as long as when they come to work their productive and if they did something off the job that cause them to not be productive and not to be able to focus then that becomes an issue and yes in that circumstance and employers should should have some rights. (00:47:03) It's a little different the public sector off-duty conduct can be the subject of discipline and even dismissal if it if it reflects negatively against either the public employer or the employee for example, a police officer is picked up for a DWI. Police officer can be fired for engaging in criminal activity because of police officers held to a higher standard or people that are interested with the government funds Auditors and so on who cheat on their taxes, so off-duty conduct can be the subject of discipline for public employees. And therefore the employers can argue that they're monitoring of that off-duty conduct may be legitimate if they have some kind of probable cause to believe that something is happening. And in fact public employers do monitor the off-duty activities of their employees. (00:47:58) I think that's also somewhat true for a private private sector gentlemen, we're out of time unfortunately lot more to talk about but appreciate your coming in today. Thank you guys. Thank you Greg Corwin who is with Corwin Associates Richard Ross who's with frederiksen and Byron stopping by today to talk about privacy in the workplace. (00:48:17) The surveillance Society Thursdays All Things Considered includes the latest radio installment of our week-long. Look at the erosion of privacy in (00:48:24) America little scary and thinking that (00:48:27) your medical records are out there on the, you know accessible by hackers or by whoever the piece airs on the next All Things Considered on the web MP r dot org, you'll see how President Clinton proposes (00:48:38) to protect your medical privacy the (00:48:40) surveillance Society from Minnesota Public Radio, (00:48:44) and of course coverage of the surveillance Society our continuing series tomorrow here on midday.