Book Review: Minding Your Business: Legal
Issues and Practical Answers for Managing Workplace Privacy; By
Michael J. Lotito and Lynn C. Outwater;
Society for Human Resources Management,
Under the auspices of SHRM, attorneys Lotito and Outwater have authored a very lucid (but pricey) guide for employers for managing sensitive personnel issues in the workplace.
The writing style is simple, examples are good, and sample personnel policies and procedures are outlined. The emphasis is on the state of current law, not on (as in my own writing) the "philosophy" of personal responsibility in the workplace. In many cases, the law, as it stands, is more protective of individual employee privacy than libertarianism would demand. For example, employers must be careful about using adverse credit histories in employment decisions if their policies would have disparate impact upon racial minorities.
The treatment of drug testing, polygraph, medical records, and sexual harassment is appropriately clear and detailed. The book mentions off-duty conduct and in one place admits that some employers may wonder how off-duty activities may affect the perception of the company with "the community" (investors, customers, stakeholders) but, outside of smoking, drug use, and nepotism (and brief treatment of sexual orientation and HIV), provides little discussion of some more controversial and ambiguous areas such as (outside of spousal interests) conflict of interest or publicity rights. The book provides model, essentially “zero tolerance” electronic communications policies, which all appear (but not absolutely conclusively) to be related to direct use of the employer's own computer, telecommunications, and database uses and not to situations where employees might put up their own web sites dealing with issues that could affect the company, or even make comments about the company. The book does mention the new trends towards telecommuting (could the employer inspect the employee's home office for "safety"?), the increased tension between married employees and singles, and the availability for overtime or on-call status. The book pays little attention to different categories of workers (salaried, exempt, non-exempt, consultants).
The media has correctly reported that under current law American workers have relatively little expectation of a “right to privacy” on the job, either with respect to surveillance for inappropriate email or Internet usage and even with respect to regimentation of productivity. Surveillance tools regarding keystrokes and web sites visited and time spent have become very sophisticated, and some employers have found it necessary to implement “zero tolerance” policies. (In one case, an employee was terminated from a company merely for transferring a dicey email home without even opening it.) Dismissals for off-the job Internet activities with one’s own resources so far have been infrequent but (particularly with respect to posing for pornography or the intentional dissemination of confidential or false information) have occurred. There would be no privacy claim here because a posting or picture on the Internet identifiably by a particular person is, by legal definition, “published”—a profound point lost on many people. More troubling have been a few occurrences where people have been fired for criticizing their employers anonymously on Internet investor boards, as employers actually have the legal right to subpoena the identifies of posters from ISP’s.
Other potential problems can be posed. What happens when an employee has to take a laptop to travel for the company? If he needs it for personal use should he be made to pay for it? At one company, a long-term employee was summarily fired for loading family computer games onto a company laptop which she took home, and then as apparently checked while connected to the corporate network.
I’ll digress here and mention a rather mediocre sob story
(2001) movie from Warner Brothers, Sweet November, with Keanu Reeves as
the type A personality who needs character guidance from a hippy girl (Charlize Theron) dying of cancer
(non-Hogkins lymphoma). It’s manipulative and
predictable, like Love Story; our male hero is supposed to be forced to
divest his false assertiveness and become “human.” But there were a couple of
scenes that will make Human Resources professionals cringe, and these are
relevant to the material offered by SHRM. One is where Nelson Moss (Reeves)
gets himself fired, after a presentation of an advertising plan where he
insults his customer by his insistence on his own agenda. (Yes, his proposed
ads crossed the line—people “eating” Digity hot dogs?) But there is always the problem in the
workplace of “telling”—letting people in on your convictions. Sometimes people don’t listen because they
already are interested in their own minds, and sometimes because they want to
cover something up. It’s hard sometimes to stick to your convictions without
risking creating a hostile workplace (and maybe getting your employer sued).
Later, when Moss is interviewed for another job, the hirer dazzles him with
blatant disregard to anti-discrimination laws (especially in a place like
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