LAW & ETHICS IN THE BUSINESS ENVIRONMENT 8e
Instructor’s Manual
CHAPTER THREE
PRIVACY & TECHNOLOGY
MAIN CONCEPTS
Surveillance at work
Electronic surveillance
The value of privacy
Lifestyle control
Privacy under the constitution
Social media and privacy
Privacy in genetic information
Privacy and corporate personhood
INTRODUCTORY TIPS
One way to provoke controversy in opening this chapter is to tell the class that the faculty senate
will soon vote on a proposal to require drug testing (or HIV testing) of all students prior to
graduation (final exams, declaring a major), and to ask the class how they feel about that. (An
alternative issue that works well: the college/university plans to monitor all student e-mail.)
Students are likely to respond not only by expressing their general ideas about privacy, but also
by sharing their own experience with drug testing whether as athletes, in the military, or at work.
The concerns they raise will probably foreshadow the major themes of the chapter.
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SURVEILLANCE AT WORK
Michael A. Smyth v. The Pillsbury Company, Questions, p. 89
It is easy to connect this case with the previous chapter: The first thing you may want to point out
is that this is a wrongful discharge case dealing with employment at will, this time under
Pennsylvania law. Note the exceptions which Pennsylvania has carved out, none of which cover
this employee, even though the employer actually promised that e-mail would not be
“intercepted and used…against employees as grounds for termination.”
Private sector employees using their employer’s e-mail systems have not fared well in the courts.
Different results have been obtained in other contexts though. The Navy violated its own “don’t
ask-don’t tell” policy by querying America Online about a sailor’s screen name because it
sounded gay, and then dismissing him. McVeigh v. Cohen, 215 F. Supp. 215(D.D.C. 1998). That
case settled before the court could rule on a possible violation of the Electronic Communications
Privacy Act (ECPA) 18 U.S.C. 2701 et seq., with the government paying McVeigh’s legal
expenses and allowing him to take early retirement with full benefits. Unionized workplaces also
present a different picture regarding e-mail privacy. In Timekeeping Systems Inc. v. Leinweber,
323 NLRB No. 30 (NLRB 2/27/97), the Board found that an employee could not be fired for
using the company system to dispute the terms of a new company vacation policy and to
challenge the veracity of the CEO’s explanation of the policy. The comments, however
“flippant,” fell within the NLRB’s definition of “protected concerted activity” as the messages
sought further discussion.
1. Why does judge say Smyth lost “reasonable expectation of privacy?” Rank the reasons.
1. The judge did not find a reasonable expectation of privacy in e-mail communications
voluntarily made by an employee to a supervisor over a company e-mail system.
2. The judge noted that the defendant did not require the plaintiff to disclose any personal
3. Once the plaintiff communicated the unprofessional comments to a second person over a
The most important factor influencing the judge was the belief that an employee has no
Discussion point: Students tend to see the key to the decision in the fact that Pillsbury owned the
computer system, but the court does not actually say that. Extend the analogy: The
2. Is there any difference between a password-protected message sent on company e-mail
and a handwritten memo sealed in an envelope and marked “private” sent through
company mail?
This question asks if there is any distinction between electronic communication used by the
entire company and a personal handwritten note. The judge noted that privacy should not be
In the case of audio monitoring, a distinction could arguably be made between e-mail monitoring
and audio surveillance. When writing emails, employees are aware that communications go out
3. Evaluate corporate surveillance policies. Compare Kmart’s policy against Apple’s.
Kmart clearly warns employees that they lose their privacy as they use the company system.
While this seems to be a more honest approach than Pillsbury’s approach in the case, this policy
The Apple policy might result in a fancy-free atmosphere on company e-mail, a setting for
creative flow as well as for time-wasting chatter. However, some would say, “What is the
4. Balancing of Interests
One could make the argument that since employees are accessible 24/7, the “balancing test”
5. Stengart v. Loving Care Agency Inc. (New Jersey Supreme Court, 2010)
The trial court determined that, based on the employer’s written policy, Stengart gave up her
7. Monitoring of e-mail by educational institutions
Policies regarding monitoring of e-mail will vary from campus to campus. Another discussion
Discuss with students whether colleges have an important interest in, for example, prohibiting
access to pornographic sites and sites involving violence.
Compare the American approach toward employee privacy with a 2007 decision identified in an
April 12, 2007 article, “E-mail monitoring may violate European laws.” Monitoring employees’
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Electronic Surveillance: The Debate
The use of electronic surveillance continues to grow. Employers claim it measures and
Electronic Surveillance: The Law
The fact that America lacks a comprehensive and uniform legal standard protecting privacy
THE VALUE OF PRIVACY
The Functions of Privacy, Questions, p. 95 & 96
1. Functions of privacy
Personal Autonomy
Emotional Release
Rest from role-playing
Self-Evaluation
Limited and Protected Communication
Telling some secrets to trusted confidantes
2. Does Westin come close to mentioning this aspect of privacy?
Westin does describe privacy as functioning to allow us to control our personal “masks” and to
limit the amount of information about ourselves that gets out. Yet the privacy issue raised by
3. What functions of privacy may have been served by the e-mail messages sent by Michael
Smyth?
Personal Autonomy: control over who knows what about him
4. Ethics of privacy in Smyth v. Pillsbury?
Stakeholders: Smyth, other employees, Pillsbury
Utilitarian: Smyth suffers and so do other employees who now know privacy in e-mail
messages does not exist. Pillsbury has identified and weeded out an alienated employee who
Deontological: Smyth’s right to privacy is at stake, but also at stake is the right of the company
to control its property, including the e-mail system. Would Pillsbury decision makers want to live
LIFESTYLE CONTROL
The debate about how much an employer should care, and should control, what an employee
does off the job is an interesting debate. Later in the chapter, there is discussion on social
networking. This section can easily be tied in to that section as employers are increasingly using
social networking sites to screen potential employees and to monitor their current employees.
State of New York v. Walmart Stores, Inc., Questions, p. 100
1. Statutory construction
Narrow: The majority says dating is not included in the category of “legal recreational activity.”
According to the majority, legislative intent indicates an effort to stay with certain clearly defined
“dispassionate” leisure-time pursuits, like “sports, games, hobbies, exercise,” etc…
Broad: The dissent says dating could fall into the general definition of “recreational activities.”
The statute, by its terms, appears to encompass social activities, whether or not they have a
romantic element. Recreation is defined in the dictionary as “a means of refreshment or
diversion,” and dating would qualify. The goal of the statute, the dissent believes, is to “curtail
employers’ ability to discriminate on the basis of activities that are pursued outside of work hours
that have no bearing on one’s ability to perform one’s job.”
Opinions will vary regarding the intent of the legislators. If it was to curtail employers’ ability to
discriminate against employees based on nonworking activities that have no bearing on job
performance, the broad interpretation seems most likely.
2. Policy issues that might have arisen as this law was debated in the Albany legislature?
Right of employers to control off-site activity that could raise the cost of employer-provided
health benefits.
Right of employers to set standards and create community at work. In the Walmart policy, there
Private sector Big Brother? Are we trending toward a society where employers can determine
how those who work for them will behave, even on their own time?
3. Rewriting the New York Law
Students should be encouraged to balance employee rights and desires with employer needs.
4. Research: home state rights to engage in off-worksite activities
Students will find various laws depending on the state researched. For example, some states
protect the rights of employees to use tobacco outside of working hours while other states do not.
The ACLU has an article titled “Introduction to Lifestyle Discrimination in the Workplace”
Protection from discrimination against smokers
The article is found here:
Can They Do That? Retaking Our Fundamental Rights in the Workplace, Questions, p. 102
1. What do you think of Lew Maltby’s suggestion? Can you imagine impairment
testing for various jobs instead of drug testing?
This question could lead to an interesting discussion. While it may seem logical to test pilots
2. Personality testing and the alternatives?
During introductory comments on the record, Naomi C. Earp, Chair of the U.S. Equal
Employment Opportunity Commission (EEOC), stated the meeting offers multiple perspectives
* * *
Sometimes promise and threat arrive together. Personality testing has been hailed
by some as a means for a more complete, and thus, more valid assessment of
The Seventh Circuit held in Karraker v. Rent-A-Center, Inc. that the line is
EEOC is seeing a limited but increasing number of tests in the course of its
investigations. Sometimes we are gratified by the care given to both technical and
On the plaintiff’s side, occasionally there are arguments backed by a highly
In evaluating other means to screen job applicants, students should be encouraged to
PRIVACY UNDER THE CONSTITUTION
City of Ontario, California v. Quon, Questions, p. 107
1. Justice Kennedy’s Fourth Amendment Analysis
a. Car salesperson: There is no comprehensive law about the electronic monitoring of the
salesperson’s computer usage. According to the American Management Association, the
employer is part of the 12% of employers who do not notify their employees. Under the
Electronic Communications Privacy Act of 1986, there are exemptions for
communications readily accessible to the public – the sales person’s involvement in a
public game might fall under that exemption. Finally, under the ECPA, businesses with
legitimate business interests, such as efficiency, may be allowed to monitor.
b. Investment Banker: This investment banker scenario parallels the Quon case. While the
fourth amendment applies to the government and not to private employees, chances are
that any state claims would look to similar analyses. Just as Quon had an expectation of
privacy in the communications, so does the investment banker. However, just as the
police department had a legitimate interest in looking at the messages Quon was sending,
so does the investment bank. Even a rationale like the one in Quon, where the employer
is evaluating quotas or limits may be enough.
c. Librarian: The library supervisors told you that the library does not monitor employees
without notice, thus increasing your expectation of privacy. When they began monitoring
you without that notice, they violated that expectation of privacy.
2. Research: Employee personal use of electronic equipment
The Electronic Frontier Foundation – eff.org.
The Center for Democracy and Technology – cdt.org
The Electronic Privacy Information Center – EPIC.org
3. Research: Bland v. Roberts, Fourth Circuit Court of Appeals, 2013
Detailed information about the case is found here:
http://www.dmlp.org/threats/bland-v-roberts
4. The law on the cusp of technology
Justice Kennedy makes the distinction that the take-home technology is more susceptible to
search than a personal e-mail or home phone. As is noted in the text, there is a trend for
employers to tolerate personal use of company equipment, as it seems to increase employee
efficiency. Given this trend, there may be an increase in the expectation of privacy in company
property. In addition, as technology becomes more and more mobile and more often upgraded
and replaced because of technological advance and not necessarily because of wear and tear or
age, more and more employees are taking technology home with them. Employers must be
careful to distinguish between technology at home as a means of accomplishing work or creating
some flexibility in where work can be done and technology taken home as a personal benefit of
the employment.