When you teach in a subject as fast-moving (and as prone to media attention) as data privacy law, this sort of thing happens all the time: my seminar is considering workplace privacy later this very afternoon, and here in this morning’s New York Times is a story [as always with the Times, registration req'd] about the extraordinary 400-person internal police force at Wal-Mart, the world’s largest private employer. It is run largely by former FBI and CIA agents. Their investigative tactics put teeth into the company’s famous long-standing emphasis on rigorous adherence to elaborate and very strict ethics rules. The article opens with the example of a Wal-Mart investigator who
flew to Guatemala in April 2002 with a delicate mission: trail a Wal-Mart manager around the country to prove he was sleeping with a lower-level employee, a violation of company policy.
The apparent smoking gun? “Moans and sighs” heard as the investigator, a Wal-Mart employee, pressed his ear against a hotel room door inside a Holiday Inn, according to legal documents. Soon after, the company fired the manager for what it said was improper fraternization with a subordinate.
As we will discuss in my class later today, there is very little limitation on private-sector companies’ investigations of at-will employees. After all, such employees can be fired for any reason or no reason. In most circumstances, as long as monitoring is established as a condition of employment — through, for example, providing a written policy to employees — it will be interpreted as “consent” of the employees (with a few exceptions). The Fourth Amendment provides some modest limits on public-sector employees, but does not apply to private employers.
You may find distasteful the notion of company snoops tailing employees and pressing their ears up against doors to hear “moans and sighs.” And to be sure, outside the workplace, employers have no greater leeway to spy than anybody else (as demonstrated by the Hewlett Packard spying scandal). But it sounds like the Wal-Mart cops stay within the law. And further line-drawing quickly becomes difficult. The Times article includes accounts of several instances where Wal-Mart investigators uncovered honest-to-goodness ethical problems, including a board member who diverted over half a million dollars to personal use (and eventually pleaded guilty to federal charges). In other areas of the law, notably sexual harassment, we are increasing our expectations of corporate knowledge about employees’ personal actions, some of them arguably within a private sphere. And judges have worried about the practicalities of prohibiting employers access to somewhat private areas such as desk drawers — what about when someone is out sick and colleagues need access to a file?
On the other hand, at-will employment isn’t entirely free of restrictions — discrimination is prohibited, and usually it is forbidden to fire someone for refusing to do something illegal. Should we build in some privacy protections for employees too, given that many of us spend more of our waking hours at work than at home, and given the power differentials between employers and workers?
I think we have plenty to talk about in class today.
Filed under: Privacy