Big Brother, Inc.

Why are businesses spying on their own employees more and more? Because they can.

It's simply a way to keep workers on the defensive, he says. "If you call a directory assistance operator and have a conversation with the operator, they are expected to complete the conversation within a set period of time. Maybe 25 or 30 seconds. The computer keeps a record of how long every call took and can come up with an average time it took a certain operator to take care of every call.

"The worst case we ever heard of," continues Gerber, "happened in California around Christmastime. Someone picked up a telephone and called an operator and said the they were thinking of committing suicide. Evidently, the operators are trained as to how they are supposed to handle such calls. They are supposed to try to keep the individual on the line, try to get the call traced. According to the account we heard, the operator was trying to keep the individual on the telephone and was signaling to get the call traced. The supervisor for the work group apparently walked over and said you're ruining my AWT [average work time]. The entire time average for the work group was going to go up. The supervisor disconnected the call."

Sometimes, he says, monitoring is used selectively to get rid of unliked or troublesome people. "Let's say it's a snowy day, and you took the last parking space just as a supervisor was driving up. There is nothing to stop that supervisor from saying, 'I'm going to get that employee.' There is nothing to stop them from listening in and documenting every single mistake you make and claiming you aren't doing your job adequately."

The same goes for union activists and whistleblowers, according to local labor attorney Wayne Kenas. "Somebody will complain in a whistleblower case," he says, "and almost without exception the employer will start rifling through their desk and looking at their e-mail trying to find a reason to fire them."

"Technology in the computer area is giving us things we've never had before," says attorney and former Minnesota Commissioner of Human Rights Stephen Cooper. "So laws haven't caught up on figuring them out. It's pretty easy to say that if you can't look through someone's window with an unaided eye, you can't do it with binoculars. But the capability of this technology is exploding. One thing computers do in short range is give people the ability to scrutinize stuff they never had power to scrutinize before."

Telephone calls are afforded some protection, thanks to the 1986 Electronic Communications Privacy Act. Eavesdropping bosses are supposed to hang up if a discussion turns personal. But according to local attorney Marshall Tanick, e-mail is afforded almost no protection. One of the most famous e-mail cases involved a woman named Alana Shoars, who was hired by the Epson America computer company in California to administer the computer-messaging system. After assuring workers the system was private, she walked into her boss's office one day in 1989 to find a stack of printed e-mail messages on his desk--every message, it turned out, sent to and from Epson employees during a two-month period. Shoars complained; she was eventually fired for insubordination. When she and a handful of other employees sued, a judge ruled that there was no reasonable expectation of privacy when it came to the messages.

Cooper blames the "skyrocketing" level of surveillance mainly on arrogance. "There are legitimate business interests, which make up a relatively small number of the occasions," he says. "The other category is nosiness--the desire to have control. You get employers trying to tell employees what religion they should be or what church they should go to. They think, 'I started this business, or moved up the ladder, I should be able to do anything I want to do.'"

In 1989 a man was fired from the Best Lock company in Indiana because he admitted drinking at a bar, which was against the company's policy. A few years later, a man and woman were fired from a Wal-Mart store in New York state after it was discovered that they were dating. The woman was married, though she was in the process of divorcing her husband, and the store had a policy stating that it "strongly believes in and supports the family unit. A dating relationship between a married associate and another associate... is prohibited." The man in the Best Lock case sued and won unemployment compensation. The former Wal-Mart employees sued and lost.

Employers, through a series of baby-steps, have crept further and further into aspects of their employees' lives that have little or nothing to do with work--including eating habits, smoking and drinking habits, and whether someone likes to hop on a motorcycle. They often justify their intrusions by pointing out that a healthy workplace is a cheap workplace: A late 1980s study of 46,000 Dupont employees showed that the average smoker costs nearly $1,000 annually in additional medical claims and sick days, for example. A 1993 Fortune article reported that Turner Broadcasting had been refusing to hire smokers since 1986. But they weren't the only ones: According to the ACLU, at least 6,000 American companies attempt to regulate off-duty smoking and other private behavior.

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