Through the Keyhole: Privacy in the Workplace, an Endangered Right

THROUGH THE KEYHOLEPrivacy in the Workplace:
An Endangered Right RESOURCE GUIDE

Hidden Surveillance

"It's a very personal thing when you're in the locker room. I just felt like my privacy was totally invaded. It was very humiliating."
--Brad Fair

Drug Testing

"They took me into an examination room and said, strip.' And I said, what?' Drug testing is a moral violation, an invasion of self, control that an employer should not have."
--Collette Clark

Lifestyle Discrimination

"What I do on my own time is my private right. I went to work everyday and I gave them 110%. I never did anything wrong."
-- Dan Winn

PROTECTING THE RIGHT TO PRIVACY IN THE WORKPLACE

Many of the basic rights we all take for granted are not protected when we go to work. In fact, the ACLU receives more complaints about workplace rights violations than about any other issue. The 12-minute video Through the Keyhole sheds some light on one particularly important issue: the right to employee privacy, and how it is violated by employers through hidden surveillance, unwarranted drug testing and "lifestyle discrimination."

These abuses occur because there are so few laws that protect workers' privacy rights. But you can help change that by supporting the Campaign for Fairness in the Workplace:

• Call the ACLU's Campaign for Fairness in the Workplace at 1-800-775-ACLU.
  We will send you ACLU publications on workplace privacy, sample letters to editors and legislators and more information on how you can help
• Show the video to your friends, family and co-workers
  Feel free to make copies and share the video with others
• Write, fax or e-mail your state elected officials
  Ask where they stand on the issues of drug testing, hidden monitoring and lifestyle discrimination by private employers.
  Urge them to introduce or support workplace privacy bills in the state legislature
• Contact your local media
  Write a letter to your local newspaper about the need to protect privacy at work
• Volunteer with your state ACLU
  If you would like to do more, call your state ACLU (we're listed in the phone book)

Many civil liberties victories have been won with the help of people like you. If you believe the right to privacy should be respected at work, you can help it happen. With the right balance of persuasion and action, we won't have to check our civil liberties at the company gate or office door.

&emdash; The ACLU Task Force for Civil Liberties in the Workplace

YOUR RIGHTS STRIPPED

Back in 1928, Supreme Court Justice Louis Brandeis wrote that the right most valued by the American people was "the right to be left alone." Private businesses, particularly those whose employees are not unionized, are not limited by the Constitution and the Bill of Rights which address only state action. They are free to violate employee privacy &emdash; and not leave you alone at all.

There are many ways privately owned businesses can strip their employees of their privacy rights:

American businesses routinely monitor the telephone calls of an estimated one million employees every year. Although monitoring is done "in the course of business," employers don't have to warn workers, and they can listen in for up to five minutes in some instances to determine if the call is a work-related call or not. Secret telephone monitoring invades the privacy of both the worker and the other person on the line.

Brad Fair's story shows how humiliating hidden video surveillance can be. Many other employees are also monitored through their audio headsets, so that supervisors can hear every word exchanged during the course of a transaction &emdash; as well as "off the cuff" remarks employees make to each other, or even to themselves.

Many employees are subjected to intrusive physical searches of their person, office or possessions in the workplace. Companies usually claim to do this on a random basis to deter theft. Increasingly, some companies use imposter employees as spies to keep their eye on workers.

An estimated two million employees every year are required to take written personality tests that probe into the most intimate aspects of their lives including hygiene habits, sexuality and family relationships.

Drug testing and lifestyle discrimination, as experienced by Collette Clark, Dan Winn and many other employees, are other ways companies can pry into the personal lives of their employees.

Only a small percentage of the American workforce is protected from these serious invasions of privacy. Federal, state and local government employees, and contract workers (senior executives, academics, performers, athletes and a few others) benefit from some degree of legal protection. Many labor unions have fought hard to protect their members' privacy rights in collective bargaining agreements &emdash; but less than 20% of the American workforce is unionized. A few states have enacted limited laws protecting privacy in the private sector. But the vast majority of Americans do not enjoy civil liberties protection at work.

WORKPLACE PRIVACY DENIED

Brad Fair, who worked for a Boston-area hotel restaurant, was shocked to discover that his employer had installed hidden cameras in the men's locker room, videotaping employees as they dressed and undressed before and after their shifts. Management claimed they suspected that employees were using and selling drugs, but nothing illegal was ever discovered.

Although Brad did find a new job, he remained angry about the hidden cameras. "It's not a problem to have cameras in the hotel, but if you hide the camera that means you don't want people to know what you are doing. It was very sneaky. I can't imagine anyone having a good feeling about working for an employer that is spying on them."

Instead of the promotion Collette Clark was hoping for at the Southern California utilities company where she worked for years, she got a pink slip after testing false-positive for marijuana. Although her employer agreed the test results were inaccurate, company policy dictated employees testing positive for drugs had to be dismissed. With assistance from the local ACLU, Collette got her job back &emdash; along with an apology from her employer.

Collette now says she will never submit to mandatory workplace drug testing again. "If my qualifications are not good enough, if my okay is not enough, if you can't believe me...no. Job performance should speak for itself."

Dan Winn worked at a Midwest factory for six years when he was abruptly dismissed. Dan Winn was observed drinking a beer with his supervisor one evening after work. Although company policy prohibited alcohol use by its employees at any time, only Dan was fired; his supervisor was not.

Dan believes the lifestyle policy firing was a mere pretext for punishing his labor organizing at the non-unionized factory. Nevertheless, he considers lifestyle discrimination to be detrimental and bad for morale. "You are constantly afraid somebody is looking over your shoulder into your personal life. That puts a lot of pressure on an employee. I guess it could cause a productivity drop."

What happened to Brad, Collette and Dan is still happening all over the country.

It's time to put a stop to these unfair practices.

WORKPLACE DRUG TESTING ON THE RISE

Increase in Percentage of Large U.S. Companies That Test Their Employees for Drugs

1987: 21%1989: 48%1991: 63%1995: 77%

Source: American Management Association

THREE MODEL STATUTES FOR WORKPLACE PRIVACY

Here are the highlights of model state laws protecting employee privacy drafted by the ACLU. Please urge your state legislators to introduce, sponsor or support these laws.

Model Statute on Drug Testing

• Employers must notify employees and applicants of drug testing policies
• Employers may only conduct drug tests when there is "reasonable suspicion" of alcohol/drug abuse; no universal or random testing is permitted
• No individual will be observed while providing a urine sample
• All test laboratories must be certified by the Alcohol Drug Abuse and Mental Health Administration
• Employees have the right to a hearing to contest the accuracy and/or ramifications of the test
• Employers must provide employees with rehabilitation and treatment information and opportunities
• All test results are confidential and cannot be released without the written consent of the employee
• An aggrieved employee has the right to introduce civil damages action in court
• Anyone knowingly violating the law may be guilty of misdemeanor

Model Statute on Electronic Monitoring

• Employers must notify employees and applicants of electronic monitoring policies
• Prior to monitoring, employers must provide a visual or aural signal to employees and any customers
• Employers must provide employee access to all data obtained by electronic monitoring
• Employees have the right to a grievance procedure to dispute inaccurate or misleading data
• Employers are prohibited from using electronic monitoring to obtain data that is not relevant to work performance
• Areas subject to monitoring are restricted and cannot include rest rooms, locker rooms and lounges
• All data collected is to be of limited use and cannot be used for an employee evaluation or to introduce disciplinary actions against an employee
• Employers are prohibited from disclosing personal data without prior employee consent

Lifestyle Discrimination

• Employers cannot discriminate against employees or applicants on the basis of their conduct during non-working hours and off workplace premises (including smoking, dietary and leisure activities) unless the conduct affects employee's ability to fulfill work responsibilities
• Employers cannot collect information about an employee's off-duty behavior
• Employees have the right to a grievance procedure to dispute discrimination based on off-duty behavior

Full copies of the model statutes can be obtained by contacting the Task Force for Civil Liberties in the Workplace at (212) 944-9800, Ext. 418

RESOURCES

Here are some recommended resources that provide more information on the issue of workplace privacy.

Ellen Alderman and Caroline Kennedy, The Right to Privacy, New York: Alfred A. Knopf, 1995

Congressional Office of Technological Assessment, The Electronic Supervisor: New Technologies New Tensions, 1987

Evan Hendricks, Trudy Hayden, and Jack D. Novik, Your Right to Privacy: An American Civil Liberties Union Handbook, Carbondale, Illinois: Southern Illinois University Press, 1990

National Research Council Institute of Medicine, Committee on Drug Use in the Workplace, Under the Influence? Drugs and the American Workforce, Washington, D.C.: National Academy of Sciences, 1994

"Whose Life is it Anyway? Employer Control of Off-Duty Behavior," St. Louis University Public Law Review, Vol. XIII, Number 2, 1994

9-to-5, Working Women Educational Fund, Stories of Mistrust and Manipulation: The Electronic Monitoring of the American Workforce, February 1990