In Defense of Snooping Employers

IN DEFENSE OF SNOOPING EMPLOYERS Jessica K. Fink* In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the “social media privacy” of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers’ efforts to monitor their employees’ email, Internet, and telephone usage. Employees rage about perceived invasions of their privacy. Politicians heatedly debate how to limit employers’ prying conduct, passing laws designed to reign in certain types of monitoring by employers. At the same time, employers also find themselves perplexed as they grapple with how they can gather the information that they need to make important business decisions within an environment that views such efforts with disdain. In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions remain regarding the proper scope and limits of employees’ privacy. This Article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to “snoop” into their employees’ private lives. The Article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this Article discusses the financial, legal, and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees. At bottom, this paper attempts to put the “problem” of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned 551 552 U. OF PENNSYLVANIA JOURNAL OF BUSINESS LAW [Vol. 16:2 represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees, and the public at large. INTRODUCTION .....................................................................................552 I. THE LIMITED RIGHT TO PRIVACY IN A PRIVATE SECTOR WORKPLACE ...............................................................................555 II. PRACTICAL AND LEGAL HURDLES AFFECTING EMPLOYERS’ ABILITY TO SNOOP ..........................................559 A. Limits Associated with Traditional Tools for Information Gathering .................................................................................559 B. The Rise in More Creative Tools for Information Gathering .................................................................................562 III.EMPLOYER MOTIVATIONS FOR SNOOPING: WHY EMPLOYERS SNOOP ...................................................................570 A. Financial Motivations for Snooping ........................................570 B. Concerns About Liability Prevention as a Motivation for Snooping (“Prophylactic Monitoring”) ...................................573 C. Reputational Concerns as a Motivation for Snooping .............576 D. The “New Normal”: Advances in Technology and Changing Employee Expectations as a Motivation for Snooping ..................................................................................579 IV.ROLE OF THE COURTS IN PERMITTING – AND PERHAPS EVEN ENCOURAGING – SNOOPING .........................................582 A. Uncertain Boundaries as Making Way for Employers to Snoop: The Impact of City of Ontario v. Quon .......................582 B. Court-Created Incentives for Employers to Snoop: The Court’s Hostile Environment and Third-Party Retaliation Jurisprudence ...........................................................................586 1. How Hostile Environment Cases Encourage Employer Snooping ............................................................................586 2. How the Court’s Third-Party Retaliation Jurisprudence Encourages Employer Snooping ........................................588 V. OBLIGATIONS IMPOSED ON SNOOPING EMPLOYERS ..........592 CONCLUSION .........................................................................................594 INTRODUCTION In February 2013, three members of Congress introduced legislation aimed at barring employers from requiring or requesting that any employee or prospective employee provide an employer with a username, password, 2014] IN DEFENSE OF SNOOPING EMPLOYERS 553 or other means of accessing a private email or social media account.1 This federal law, coming on the heels of similar legislation passed in at least ten states2 and pending in many others,3 has been characterized as “vital to preventing employer requests for personal accounts becoming routine.”4 In the same vein, employees in recent years increasingly have complained about other types of alleged intrusions by employers – intrusions involving everything from the monitoring of telephone and email communications, to the use of global position systems (GPS) to track employees’ whereabouts, to the application of sophisticated technology that can record virtually every keystroke made by an employee on his/her employer-owned computer.5 At first blush, the outrage expressed by both workers and the public regarding this type of employer conduct seems understandable, even predictable: What possible reason might an employer have for needing to delve into an employee’s social media account? Why must an employer know the precise location of an employee at every moment of the workday? Should there not be some areas of an employee’s life that can remain “private,” safe from employer intrusion, even if such areas touch upon workplace activities? Given that employers’ efforts to monitor employees show no signs of abating, and given that the technological means for engaging in such monitoring are only becoming more * Associate Professor, California Western School of Law. J.D., Harvard Law School, 2001; B.A., University of Michigan, 1997. I am grateful to Professor Orly Lobel and the students in her Work, Welfare and Justice Seminar at the University of San Diego School of Law for their helpful suggestions with respect to this paper. Finally, many thanks to Camille Gustufson for her excellent research assistance. 1. Social Networking Online Protection (...truncated)