Big Brother, Inc.

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

Back in the days of the first motorcars, Henry Ford took a long, hard look around the production floor of his massive Highland Park, Michigan, plant and was displeased by what he saw. The employees weren't moving fast enough or working deliberately enough. He assessed his options and installed a series of conveyor belts. The assembly line was born, giving management a previously unimagined control over the rate at which cars were produced.

The line didn't go over well with the people who worked on it. The pace was rigorous, the work exhausting and dangerous. People began showing up late, or not at all. Many quit to go to work in other plants. So Ford added a carrot to the stick: He offered to pay $5 a day, exceptional wages in a market where $2 was the norm. The workers were mollified, but with the added wages came a heightened paternalism. Ford not only expected twice the productivity; he expected workers to abide by a lifestyle he deemed fit.

"Ford wanted to control people," says Macalester College history professor Peter Rachleff. "He thought it was perfectly all right to intervene in workers' homes to get them to lead an appropriate American lifestyle. He made sure that they didn't spend their wages on alcohol, that they bought newspapers--though he didn't want them subscribing to radical newspapers--and that they were married and raising their children. At the time, [the team that visited employee households] was called the sociology department, but in a way it was the first personnel department. In those days it wasn't unusual for private charities to have middle class social workers coming to workers' homes and giving advice on how their lives should be organized. But it was unusual for an employer to do it."

"Of course," shrugs Rachleff, "Henry Ford was a fascist. In the 1930s, Hitler gave him a medal."

"Fordism," as it's known among historians of labor and industry, set the model for labor/management relations in the decades to come. Extra pay meant added control; even when unions became a major force in later years, they were usually willing to concede matters of shop control and workplace rights in exchange for higher wages. Still, strong unions meant employers were less likely to push policies that violated common sense or workers' privacy. "Unions made a big difference," says Rachleff. "If you look at this historically, employers were very intrusive into the 1930s. Then the basic unionization of mass industry pushed employers back."

For the past generation or so, as organized labor has declined, management has gone on the march again. As Rachleff puts it, "I think employers nowadays are feeling that when a worker is on the job, they own him or her. Someone once said that the number-one principle of American management theory is that the worker is a goldbrick--management is always afraid of what the worker will do if left alone. When they see a chance to get into the worker's space and be in more control, they'll grab it. And they're in a better position to do that now than anytime in the last half century."

One of the ways it's played out in recent years is in increasingly routine incursions into employees' workspaces and their lives outside the plant or the office: urine-testing; e-mail interception; phone-tapping; psychological "integrity" tests; personal tracking devices; remote monitoring of computer workstations; covert videotaping. From a legal standpoint, even civil liberties advocates concede that managers are free to do just about anything they like.

During the 1950s, '60s and '70s, the contract between employer and employee was relatively simple: a day's work for a day's pay. Wages were on the rise, reaching an all-time high in real dollars in 1973. Most families could live on one 40-hour-a-week income. As everyone knows by now, the picture has changed. Thanks mainly to automation and capital flight, there are fewer decent-paying jobs; real wages have fallen an estimated 16 percent since 1973. And according to the conservative estimate of the Bureau of Labor Statistics, more than 7.6 million Americans now hold down more than one job. On top of the longer hours for lower pay, it's estimated that corporations are eliminating more than 1 million American jobs every year. New jobs are created, but as Jeremy Rifkin points out in The End of Work, two-thirds of them lie at or near the bottom of the wage pyramid.

Employers, of course, argue that they face tremendous pressures of their own. They point to rising insurance costs and the threat of losing a "negligent hiring" lawsuit or of losing control over trade secrets. There is more competition with offshore production--not entirely "foreign" competition, since so many of the foreign plants are owned by American transnationals, but a depressive force on domestic wages all the same. "Employers are under unprecedented pressure to be productive," says Lewis Maltby, director of the ACLU's Workplace Rights Office. "Instead of responding by empowering their workers to be more creative, they've cracked down with sweatshop techniques. It's just like the 1920s, except by electronic means."

"The whole idea that workers are a source of value has gone out the window [in industry]," adds economist Doug Henwood, publisher of the newsletter Left Business Observer. "They are seen primarily as a cost. We're essentially going back to the relationship before World War II--to a little totalitarian state as far as the employer goes. If you're an employer, it's a beautiful situation. Workers are desperate and willing to do anything." On the other hand, he adds, "They know they're screwing their workers and they know their workers would like to screw them. So they try to monitor and control them as much as possible."

Today it's not unusual for a job application in any given American business to begin with urinalysis, a background check, and a battery of personality tests. (The lie detector, once a pre-employment tool in about 1 million cases a year, was effectively outlawed for that purpose in 1988 owing to its notorious inaccuracy.) Business is booming for companies that sell tests designed to ferret out the untrustworthy, the alienated, and the drugged. Some questionnaires are used to predict sympathy to unions as well.

The ACLU estimates that at least 2 million job applicants are required to take such tests every year--particularly in retail, where there is a high rate of employee theft. Indignant employees have sued; some have even won. A man applying for a job as a security guard at a Target Store in California received $22,000 as part of a class-action suit after being asked true and false questions like I fall in and out of love rather easily; I wish I were not bothered by thoughts about sex; I have no difficulty starting or holding my urine; I am very strongly attracted by members of my own sex; and I believe my sins are unpardonable. Target doesn't use that particular test anymore.

But other tests, supposedly less invasive, remain popular. Businesses like Personnel Systems Corporation promise that their Trustworthiness Attitude Survey and their Alienation Index Survey will provide employers a "view of the candidate's belief system." They are highly accurate, promotional literature claims, and, above all, easy: The employer is in charge of administering the test, as well as grading and interpreting the results. It's hard to guess what one would learn from the company's 100-question P.A.S.S. III survey, which veers between the asinine and the laughable. Among the statements to which one must respond: Marijuana smoking once or twice a day doesn't hurt anyone; Most employers demand too much for too little pay; Do you sometimes enjoy going against the rules and doing things you're not supposed to do?; Employee theft is chicken feed compared to income tax evasion by company executives; and If a person is clever enough to cheat someone out of a large sum of money, he ought to be allowed to keep it.

In 1991 an employee of the Sheraton Boston Hotel caught management secretly videotaping inside an employee changing room. Jeff Feuer, a Cambridge, Massachusetts, attorney who currently represents five employees suing the Sheraton Corporation for invasion of privacy, says the company claims it was looking for drug activity. "We believe they put the camera system in there for [different] reasons," counters Feuer. "It was focused on a dead-end area of the locker room where people would meet and talk. There was no sound on the tapes. But it was the beginning of a contract negotiation year. We think they put that in there to spy on union workers and meetings. They were [giving the video system a test run] to see if it was useful."

Employers are using cameras more and more to spy on their workforce. Video systems are sold as a way to keep cashiers honest and to keep a constant electronic eye on things. But surveillance these days is hardly limited to cameras. Technological developments are giving employers innumerable ways to be virtually anywhere in the workplace at any time. There are computer programs that keep a tally of keystrokes per minute. There are devices that allow employers to look in on other people's computer screens without their knowledge.

A 1991 survey by the Society for Human Resource Management found that 11 percent of the companies asked regularly use video cameras for monitoring purposes; a 1993 MacWorld survey reported that 21 percent of the 301 businesses questioned had searched their employees' computer files and voice mail. Nine percent admitted to reading employee e-mail. "These data suggest that some 20 million Americans are subject to electronic monitoring," said the article, adding that fewer than a third of the companies who do surveillance give any advance warning.

Says Robert Ellis Smith, publisher of the Rhode Island-based Privacy Journal: "I think an issue to watch is the use of various monitoring devices like software that will keep an eye on productivity, work product, or concentration level. There was a company selling software that allowed employers to send out subliminal messages telling you not to steal or to pay attention. It was sold like a screen saver. The messages were flashed on the screen very quickly."

There are also telephone systems that record how many minutes are spent on each phone call as well as the phone numbers of incoming and outgoing calls. Often the conversations themselves are monitored, with or without the employee's knowledge. That includes when they are recorded on voice mail, as Michael Huffcut, a former supervisor at a New York state McDonald's, learned the hard way. He filed a lawsuit in December 1994 after his boss and a fellow employee made tapes of his voice mail messages. The messages, left for him by a lover, were subsequently played for Huffcut's wife. When he protested, he was fired. The case is currently pending.

Phone surveillance is especially prominent at local phone and utilities companies, where there is a lot of customer contact, and in the insurance industry, where there are liability issues regarding the language used to describe coverage to policyholders. Lou Gerber, a lobbyist for the Communications Workers of America, says listening in on phone calls, since it's directed almost exclusively at low-level employees, makes for a particularly effective bully stick. "If the argument is that it's necessary to monitor employees in order to ensure productivity, it might be more useful to secretly monitor high-level managers whose telephone conversations and actions are going to have more impact on this public utility than any low-level operator. But I'm not aware that that ever happens."

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.

In 1992 the Minnesota legislature passed a bill limiting the rights of employers to dictate behavior outside the workplace. The law, much like those passed in other states at the behest of the tobacco industry, says that employers can't refuse to hire, discipline, or discharge someone because they "engaged in the use or enjoyment of lawful consumable products if the use or enjoyment takes place off the premises of the employer during nonworking hours." Many companies now offer bonuses, cut-rate insurance premiums, or other incentives to the physically fit.

Giving incentives for healthy behavior has a certain common-sense appeal, but critics say the future holds murkier prospects: The same cost-cutting logic could be used to legitimize the use of genetic testing in the workplace, making it possible for employers to fire or refuse to hire people who are predisposed to certain illnesses. "We do have evidence that employers have used genetic information to assess and evaluate their employees," says Wendy McGoodwin, executive director of the Council for Responsible Genetics.

"One case involved a young woman, a social worker with a large human resources agency. She was participating in a training session with some coworkers. The workshop was on caring for people with chronic illness. During the course of the workshop she mentioned to her coworkers that her mother had died of Huntington's disease and that she had cared for her when she died. Two weeks later she lost her job. It was later revealed that the company was in the process of renegotiating its agreements to provide health care benefits to its employees. They were concerned about the cost of providing insurance to this woman. She did not have Huntington's. They didn't even know if she had the gene that caused Huntington's."

Though the 1990 Americans with Disabilities Act made it illegal for employers to discriminate against people with HIV--only about 3 percent of American companies currently test employees for the virus, according to one survey--the law is less specific when applied to genetic testing. "At the moment it is legal for employers to perform genetic tests on their employees," says McGoodwin. "The controversy surrounds what they can do with the information. They are not allowed to use it in a way that is considered unreasonably discriminatory. But these are vague terms and always open to interpretation."

Overall, there is very little protection against invasions of privacy by employers, especially in Minnesota, one of the few states in the country without a privacy tort. A minimal number of cases get filed in the first place, since the likelihood of winning is so remote; the ones that do are usually settled and sealed.

While the Constitution dictates that police and other government agents almost always need a warrant to search a home or listen in on a phone conversation, the workplace is different. It's the domain of bosses and managers. They literally own the office, the phone, the computer, and, in a sense, their employees. And they can do just about anything they want as long as it's not done in a discriminatory manner. According to Maltby, "There are only two things an employer can't do. They can't deliberately eavesdrop on a purely personal conversation that occurs on the job. And they may or may not be able to put a hidden camera in an extremely private area like a bathroom. It's not clear that the latter is illegal, but they're taking a risk. They might win the case, they might lose. Everything else is open season."

In fact, the laws are so thoroughly stacked in favor of employers that it's tough to find attorneys to take even the most seemingly egregious cases. "We had a [potential] case," Maltby continues, "where an employee--foolishly to be sure--was keeping his personal diary, including his reactions to sessions with his psychiatrist, on his laptop. One day he transferred all his files to his desktop, accidentally including his personal files. The employer read them and it's not clear that that was illegal. No lawyer in California will take the case because they are not sure they can win it. We talked to a dozen different lawyers. My advice to people is don't say anything at work that you wouldn't want your boss to listen to, because they might be."

American workers, it is often claimed, are the most spied upon in the world. In the words of an ACLU briefing paper, "In the 18th century, when the Constitution and Bill of Rights were ratified, the government was viewed as the only major threat to individual rights. The Founders could not have imagined back then that, one day, concentrations of corporate power would exist on a scale rivaling, and in some cases exceeding, governmental power.... Nationwide, the American Civil Liberties Union receives more complaints about abuses by employers than about abuses by the government."

The American public is squarely opposed to the use of surveillance in the workplace. And the repulsion factor increases as bosses delve further into personal habits and genetic testing. A poll published in Time in 1991 found that 95 percent of Americans believe employers should not be allowed to listen in on phone conversations; 67 percent thought employers should not have the power to check the credit history of job applicants; 56 percent did not think employers should be able to scan work areas with video cameras. A series of Harris polls taken through the years shows that concern about privacy has risen dramatically: In 1977, 25 percent of Americans said they were "very concerned" about their privacy; by 1993, the number had risen to 53 percent.

The trouble is, most workers aren't willing to risk a paycheck in a time when good jobs are hard to come by. "If someone has to choose between ripping out a camera and feeding their kids," says Maltby, "what choice do they have? They keep putting food on the table and live with the camera. People are still human enough to know that there is something wrong with a hidden camera in their office, but they also know their options are very limited. A job is a job." CP

If you'd like more information on workplace privacy, you can contact the ACLU's Workplace Rights Office at 212-944-9800; the Minnesota Civil Liberties Union at 522-0219; or the national office of the Communications Workers of America at 202-434-1300.

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