It's The Law

How May an employer monitor employees in the workplace?

In most states, citizens have a right to some privacy in their persons and affairs, and this right extends into the workplace to protect employees from over-intrusive monitoring by employers. For example, employees have a limited right, created by federal and state wiretapping laws, to privacy in their telephone conversations and voice mail messages. An employer who wishes to monitor telephone calls or voice mail messages must warn employees that it is doing so, and establish that the monitoring is undertaken in the "ordinary course of business," such as to monitor performance or to coach employees. An employer may also monitor communications if it has reason to believe that an employee is using the telephone or voice mail to commit theft or somehow damage the company, but again, only if the employer warns the employee that it plans to monitor. An employer who monitors phone calls or voice mail messages for any reason must stop monitoring as soon as it determines that a call or message is private.
E-mail messages and Internet use do not yet appear to be protected in the same way that telephone calls are. As a result, an employer probably may monitor employee Internet use and e-mail messages.
Another way in which employers have monitored employees is by placing video cameras around the workplace. An employer who places a camera in the lunchroom or on a loading dock does not violate the law, but employers have been held liable for invasion of privacy after placing hidden cameras in bathrooms or in the ceilings of employees' offices.



When is Harassment illegal?
Contrary to popular belief, it is not illegal for a supervisor to harass an employee simply because he or she doesn't like the employee's work or doesn't like the employee. Harassment is illegal only if it is based on some protected characteristic of the employee, such as his or her age, race, national origin, gender, or disability.
In addition, harassment must be "severe and pervasive" in order to violate the law. Courts have held that the government cannot make American workplaces pristine, but only may ensure that they are not "hostile and abusive" to an employee because the employee is a member of a protected class. Therefore, isolated or occasional use of racial or ethnic slurs, or sporadic dirty jokes, while offensive, will not violate the law. On the other hand, one incident of harassment, if it is severe enough, may be enough to violate the law. An example might be a sexual assault or a beating by coworkers. Likewise, harassment which is continual or which pervades the work environment is actionable. Such behavior includes constant dirty jokes or comments, repeated unwelcome passes, or a workplace decorated with pornographic posters.
Finally, the harassing behavior must be offensive to the reasonable person and to the employee. Behavior which offends a highly sensitive employee, but which would not offend a reasonable person in the same situation, would not violate the law. Likewise, behavior that might offend a reasonable person, but that clearly did not offend the employee, will not create a right for damages. In determining whether the employee was offended, a court or jury will consider whether the employee willingly participated in the conduct, and whether he or she used reasonably available avenues of complaint to protest the conduct.




May an employer or supervisor "play favorites" among employees?
Just like "negative discrimination," or firing or demoting someone because of their membership in a protected class, giving special treatment to an employee because of his or her race, age, gender, national origin, or lack of a disability is illegal under federal and state anti-discrimination laws, if the special treatment results in some disadvantage to non-favored employees. Examples of illegal favoritism include giving better sales territories or special assignments to employees of a certain gender or race, providing opportunities to such employees that make it more likely they will be promoted in the future, or judging their performance by easier standards, so that their performance reviews tend to be better.
On the other hand, it is not illegal to simply have favorite employees, or to treat some employees better than others, or even to be unfair-as long as such unfairness is not based on protected criteria like race or gender. In fact, it is not illegal for a supervisor to have a consensual affair with a subordinate, and then give that subordinate special favors or a promotion because of that affair. Courts have held that while this may appear to be discrimination, in fact, the favoritism is not based on illegal consideration of any employee's protected status, but instead upon the paramour's special relationship with the supervisor. Where such relationships are widespread in the workplace, however, it creates a corporate culture in which it appears that an employee must have an affair with his or her supervisor in order to be promoted or get ahead. In such cases, courts have found that the employer created an environment pervaded with quid pro quo sexual harassment, where an employee is required to submit to sexual conduct in order to receive certain employment terms.