Naomi Soldon works as a Subrogation, Employee Benefits, Labor Law and Employment Law attorney. In the following article, Naomi Soldon discusses privacy, surveillance, and fair employment practices in a digital era.
The world is more digitally connected than ever before — and so is the global workforce.
This year, a National Skills Coalition report found that 92% of jobs either definitely or likely require some form of digital skills, a new record. These skills include everything from experience with certain software packages and platforms to using mobile apps and running meetings online.
But this new digital economy age comes with a new reality. Companies are eager to find workers who are digitally confident or masterful. In a digital age, that adds complexity to practices governing workers’ rights related to surveillance, privacy, and fair employment.
Digital technology has not just led to a brave new world for global business, but a new reality for billions of workers and their relationships with employers.
Naomi Soldon Notes that Privacy Laws are Over 100 Years Old
Naomi Soldon says that while privacy has long been considered a general right of Americans (Supreme Court Justice Louis Brandeis described it in 1928 as the highly valued right to be “left alone), it has a history of not being the most protected right in the workplace.
Even before the digital age, some states specified privacy rights that extended into workplaces, but employers regularly made it a policy to limit privacy when it came to employees using a company’s technologies or to eliminate privacy related to what’s on an employee’s desk.
While some degree of personal privacy has always existed for employees, courts often face a decision on whether certain privacy invasions by a company were within reasonable expectations of privacy invasions weighed against a company’s reason to seek certain protected information.
Naomi Soldon explains that in the digital age, some rights related to personal privacy are still maintained. Certain privacy obligations related to health insurance and those protecting Americans with disabilities are still strictly observed.
Even when employees are working primarily in a digital space, major privacy guidelines still exist, such as those governing physical searches, background checks, and internet access.
Surveillance and Monitoring
Ever wonder if an employer is monitoring your personal emails or internet history while you are on the clock?
The short answer is they probably are — and it’s mostly legal. State and federal laws are in place that allow employers to take a look at almost everything done on their digital networks or devices that are used by employees, but owned by the company. Employers can obtain information about screen content, keystrokes, and emails.
The catch for employers? There are also laws that limit the application and scope of such monitoring software. Some states have laws in place that require consent between workers and employers (the federal government does not) or justification that the monitoring is related to valid business concerns.
That said, as of April 2023, only four states require getting an employee’s consent for digital monitoring.
Naomi Soldon says that the 1986’s Electronic Communications Privacy Act prohibits the unlawful interception of electronic, wire, or oral communication. Employers can prove exceptions to the rule through either the business-use exception, the provider exception, or the consent exception.
Digital Bias
Since 2003, LinkedIn has offered employers help in finding the right candidate for a job and finding one quickly. Other job listing sites soon followed, including Indeed in 2004.
Within a few years, Skype was used to schedule and conduct interviews. New software promised to streamline the job search process even further, screening through thousands of candidates and using tools once reserved for HR reps to use face-to-face.
While this digital age of job searches and screening was initially praised as highly impartial and unbiased, many have begun to see it as actually exacerbating bias in the hiring process. Not all digital algorithms used through big data can be completed objectively, many digital scholars say. One scholar found that data-trained algorithms still reflect discriminatory hiring processes.
There is Still Constitutional Support
Privacy is also broadly covered and protected by the U.S. Constitution’s Fourth Amendment, which guarantees that people and their property are generally protected against unreasonable seizures and searches by the government. That rule applies to many digital tools in a workplace, including email, but only again only where the employer is a governmental agency.
Naomi Soldon notes that with all told, 48 states also have worker privacy statutes that reflect those in the Electronic Communications Privacy Act, and the majority also have privacy rules that are stricter than what the ECPA outlines.
Still, with the ubiquity of technology in the workplace and its continuous evolution in this digital age, the privacy of employees becomes an even greater concern when monitoring can be done with a simple click of a mouse triggered by an employee’s click on a keyboard.
