MODULE 33: Monitoring Software
Core Module Issues:
• Is it reasonable for a company to use software to monitor what its
employees do with their computers?
• If so, should the workers be given notice?
• Should workers be fired for misuses of work computers?
Module Teaching Notes
This module begins a new unit on workplace privacy. You should probably spend a bit more time
than usual lecturing before starting the discussion of the scenario.
Three critical points to raise here, and repeat from time-to-time throughout the unit:
1. As with the last unit, the employment-at-will doctrine allows for workers to be disciplined or fired
for any reason that is not legally prohibited. Unless a law says, “you can’t”, then a company can.
So, a worker cannot be fired because of his race (because the Civil Rights Act says so), but a
worker can be fired for not getting alone with his supervisor.
2. There is a Constitutional right to privacy, but it generally does not apply to the employer-
employee relationship so long as the workplace is a private business and not a part of the
government itself.
3. Few other kinds of laws (as in, statutes and not Constitutional law) exist that give workers
privacy rights in the workplace.
For these reasons, companies are generally free, so far as law goes, to keep an eye on their
employees’ computer usage. They may use software or direct observation.
An early test case was Smyth v. Pillsbury (1996). In the case, Smyth was fired after sending a
mean email about his boss. The court upheld Pillsbury’s right to look through Smyth’s email.
Congress could act tomorrow and create any number of privacy rights for workers, but they have
so far declined to do so. As a result, a MAJORITY of large corporations use software to track
employee behavior while online or otherwise using their computers at work.
Notice of surveillance is “nice”, but is not legally required.
The Fidelity example in the book is included because so many students have fantasy football
teams, but you might want to substitute a more recent example for your class discussion.
Discussion Points for Scenario Questions
1. Was it reasonable for the company to install the tracking software in the first place? Should
the company have given notice to workers that their activities would be monitored?
A. REASONABLE – BUT NO NOTICE WAS GIVEN. ISN’T THAT UNFAIR?
B. NOT REASONABLE – BECAUSE OF THE LACK OF NOTICE, OR EVEN
WITH NOTICE WOULD IT HAVE BEEN UNREASONABLE?
2. Although the CEO said in the first meeting that he was “not looking to discipline anyone
yet,” he is not legally bound by that remark. If he has a change of heart, should Employees #4–7
be given a reprimand, suspended, or terminated?
No Punishment/Reprimand/Suspension/Termination
Employee #4
Employee #5
Employee #6
Employee #7
A. DID YOU CHECK MORE THAN “NO PUNISHMENT” FOR ANYONE? IF
SO, WHO, WHY?
B. DID YOU CHECK “TERMINATION” FOR ANYONE? IF SO, WHO, AND
WHY?
3. Assume for this question that the CEO decides not to discipline anyone this time but that he
issues a clear policy banning personal use of the Internet at the office. Now evaluate the same
workers, with the addition of Employee #2. What punishments, if any, should they face if they
are “on notice”?
No Punishment/Reprimand/Suspension/Termination
Employee #2
Employee #4
Employee #5
Employee #6
Employee #7
A. DID YOU CHECK MORE THAN “NO PUNISHMENT” FOR ANYONE? IF
SO, WHO, WHY?
B. DID YOU CHECK “TERMINATION” FOR ANYONE? IF SO, WHO, AND
WHY?
4. Consider the case of Employee #8, who viewed pornography at work. What should happen to
him at this point?
A. FIRE – EVEN WITHOUT NOTICE? SHOULD HE “JUST KNOW” BETTER?
B. DON’T FIRE – AREN’T SOME THINGS SO BAD THAT THEY REQUIRE NO
NOTICE?
5. If you owned a business and were drawing up a policy to cover this kind of scenario, what
would it look like? How much personal use of the Internet would you allow?