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Watch yourself - you might be monitored

By Etelka Lehoczky, Globe Correspondent, 10/10/04

Illustration/Randy Stevens

Gail Nelson of Salem tries to make time to exercise. She used to do that by walking to and from Salem State College, where she's a clerical worker. She had to change into her work clothes at the office, but she didn't mind. She was usually the first person to arrive and the last to leave, so she just ducked into a high-walled cubicle.

Then she heard about the camera.

Her immediate supervisor had set up a video camera to watch for intruders. But when Nelson's clothes-changing was captured on tape, she said, the boss didn't tell her she was being watched. A co-worker clued her in.

''I would go behind the screen, where the cameras were, and change my clothes,'' said Nelson. ''They knew that I did that. What reason was there not to tell me? There was none.''

But Nelson's boss had no obligation to tell her she was being captured on film. She sued the college for invasion of privacy, but lost. The case is on appeal. The college refused to comment.

In most states, it's legal for an employer to monitor much of what you do in the workplace - and never let you know.

More companies are not only monitoring employees, they're using ever more diverse methods to do so.

A study released in June by Forrester Consulting and Proofpoint, a maker of antispam and antivirus software, found more than 43 percent of large corporations employ staff to monitor employees' outbound e-mail. The monitoring was spurred mainly by fears workers might be leaking sensitive corporate information.

The rise of cheap, compact, easy-to-use monitoring systems gives employers an unprecedented ability to track employee behavior. In 1995, when Nelson was taped, her supervisor used a clunky video camera and VCR. Today, a hand-size camera with a millimeter-wide lens can do the same job for less money.

''It used to be that it was difficult and expensive to put in a camera. You had to hire a private investigator and spend a lot of money,'' said Lewis Maltby, head of the National Workrights Institute. ''Now you can buy the camera on the Internet for $59.95 and install it yourself, and it's the size of a pack of cigarettes.''

Several states, including Massachusetts and California, have decided to put workplace privacy on the agenda. In February, California state Senator Debra Bowen introduced a bill that would have required employers to notify employees of any electronic monitoring. Governor Arnold Schwarzenegger vetoed the bill. Bowen said she is considering introducing a new version.

A similar bill introduced by Massachusetts state Senator Marc R. Pacheco has languished in committee since January. Pacheco said he plans to file a new bill in December if necessary.

''Although we have many reputable companies in Massachusetts that would never tolerate invading workers' privacy, we still have too many employers that are invading workplace privacy,'' Pacheco said. ''The reason we have this legislation is that workers will at least have the knowledge that somebody may be videotaping them, that somebody may be reading their e-mail.''

Videotaping is the best-known form of surveillance. But besides monitoring Internet use and taping phone calls, some employers use productivity software to monitor every keystroke.

Employers even have the ability to know where a worker is at any moment. Radio frequency identification tags placed in an employee badge can trace the wearer's every move.

''They know how long they spend in the bathroom, how long they spend at the water cooler, how long they spend out at lunch. And it's all done electronically,'' said attorney Jeff Feuer of the Cambridge firm Goldstein and Feuer, which is handling Gail Nelson's case.

The good news: In Massachusetts, there is some legal protection against workplace snooping. Feuer says state law supports a ''reasonable expectation of privacy,'' depending on circumstances.

''We have a very strong wiretap law in Massachusetts,'' he said. ''You can't have secret wiretapping of people. That's not true for silent videotaping. In a workplace, the question becomes 'What does the workplace look like?' Is the videotaping secret or is it open? Do you have a private area or are you working in a large open area? That's the question: What is a reasonable expectation of privacy, given what your workplace looks like?''

Feuer notes the state has a privacy statute that offers protection against a substantial and unreasonable invasion of privacy. It also offers something to point to when raising the issue with an employer.

As for just how to raise the issue, specialists agree on one thing: Present a united front. Find co-workers who share your concerns and request a meeting with the boss. You have the legal right to do this, said Cindia Cameron, organizing director for the Milwaukee-based working women's organization 9 to 5.

''There's a little-known and underused law, the National Labor Relations Act, that says employees have the right, in groups of two or more, to meet with their employers about wages and working conditions without fear of reprisal,'' Cameron says. ''That's the basic rule of thumb.''

Still, it's a good idea to be nonconfrontational.

''Our general advice to people is ask questions,'' Cameron said. ''Ask for a meeting and say, 'Just for everyone's privacy and comfort, it's helpful to know what's being monitored, so that if we want to make private use of the phone or Internet, we'll do it on our time.'?''

Rather than attack the entire notion of monitoring, you should ask for clearer rules and limits, said Kurt Opsahl, staff attorney at the San Francisco-based Electronic Frontier Foundation. That will encourage an employer to turn a critical eye on systems it may have implemented without much consideration.

Cameron said monitoring isn't necessarily a good bargain for employers, because it hurts morale: ''When people feel like they're being spied on, it sets a really negative tone at work.''

Opsahl suggests pointing out that if your employer doesn't have specific reasons to monitor, it may do more harm than good. ''While employer monitoring may be appropriate in high security situations, in most cases it is not necessary for the company's business goals,'' he said.

Maltby suggests asking that personal e-mail be exempt from monitoring. Software is sophisticated, ''and the employer can slice or dice it any way it wants to,'' he said. ''The employer can tell the employees, 'Tell me the e-mail address for your husband or wife or doctor or lawyer, and I will tell the monitoring computer not to look at those e-mails.'''

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