Who watches you at work?

By David Maida

You might think that you're entitled to a certain amount of privacy at work, but this isn't always the case.

Some employers have gone as far as putting secret cameras in employee changing areas and gotten away with it.

Katrine Evans, assistant privacy commissioner, says privacy is governed by several principles and no methods of surveillance is completely banned.

"Sometimes it's necessary to be covert and privacy doesn't prevent you automatically from being covert," says Evans.

Your movements are tracked throughout the building and recorded through proximity keys and swipe cards.

Your 'in and out' times are noted by the carpark access gate.

Cameras might even record your every move.

And as some politicians have even discovered, email certainly isn't secure.

"Some employers reserve the right to check emails at random. It just depends on their policies," says Evans.

She says surveillance needs to be clearly communicated to the employees.

Computer keystroke recorders are of particular concern.

"It's absolutely vital that employees know that that's going to go on because if they don't their privacy is hugely at risk."

The exception is theft, where the Privacy Commission has allowed extreme intrusions to catch a crook.

In 2003 a company installed a video camera in the locker room at one of its plants.

It was aimed at the suspect's locker, where they changed from street clothes into sterile clothes, and featured a motion sensor. The commissioner ruled that the camera installation was lawful and not unfair saying: "Surveillance did not intrude unreasonably and did not cover shower and toilet areas."

Evans says in most cases employees should be informed in advance of what the office policy is regarding privacy issues.

"You have to be cautious that collecting information and using information about people can either promote morale or impede morale and therefore productivity in the workplace."

The level of privacy you enjoy at work is in large part a courtesy of the employer as to how much they choose to allow you to have. The only thing you can do to protect yourself is to know what's going on.

"Privacy is about being informed and involved more than keeping things secret. If you don't know then you're powerless. Privacy means you have to know unless there is a really good reason why not."

Evans says that overzealous employers may be doing themselves a disservice.

"If you've got a camera hanging over your shoulder recording every keystroke that you're making, it might actually impede morale and productivity. Sometimes trusting people and letting them get on with it is a better way to go."

But once any piece of your information is put onto a computer database it is never totally secure.

From the cases of credit card database thefts in the US to a Kiwi cop allegedly snooping through police records to find out about girls, there is always a chance of a security breach.

"Nothing's completely secure. If you build Fort Knox you have to maintain Fort Knox as well."

To keep your personal emails more secure, Evans recommends using a web-based system.

"If you're determined to make sure that nobody is ever going to see something then take other steps. Have a Gmail account or whatever it is that you want."

If your information is leaked or your employer has done something to breach your privacy, you can bring a complaint to the Privacy Commission to determine if there is a privacy law breach. .

But she adds that the Privacy Commission is not there to act on your behalf against the employer. Its mission is to try to mediate and conciliate - and it doesn't award damages. Occasionally a rare case may be forwarded to the Human Rights Review Tribunal which has the authority to award damages up to $200,000 but has never come close to that.

Professor Paul Roth, University of Otago Faculty of Law, says a privacy breach could constitute an unjustifiable disadvantage to employment conditions in terms of the personal grievance jurisdiction of the Employment Relations Act of 2000.

"Failing any relief there - the employee should find another job with an employer who respects the worker's privacy and let the free market do the job!" says Roth.

Some employers do take certain measures to respect employee privacy. For instance, marking personal emails with the word "personal" in the subject line lets snoopers know the mail is private. But this is no failsafe.

"Email could also be used to betray work secrets and confidential information, so if there is a reasonable suspicion, the employer should be able to open such emails."

This is why employees need to know the policy, he adds.

"By formulating a policy beforehand and letting employees know that they will be monitoring employee email constitutes sufficient and fair warning to employees not to be using work email for highly sensitive or personal communications."

If workers know about the practices and guidelines, it might also improve database security.

If workers know that every query to the database is noted and logged then they might be less likely to snoop around. Roth says people often get caughtthis way.

"The best thing would be to continue using such technology and let employees know of the existence of these measures so that they do not access information when they are not authorised to do so or use the information for unauthorised purposes," he says.

Database surveillance can be done covertly, but when it comes to covert video recording, Roth says it has to be justified.

"How else could one catch a thief except by catching them in the act?"

Roth says the electronic eye of an overt camera should be seen as no different than what used to be the naked eye checking up on work on the factory or shop floor.

So, are you being watched? Of course, says Roth, you're being tracked and recorded as well.

"Employers can use it for the protection of their legitimate interests which are: protection of their own property or the property of other workers; health and safety; and to enable them to monitor the work."

Roth says that employee privacy at work is mainly a matter of contract law.

"The employer pays the employee money to work. Accordingly, it is managerial prerogative to ensure that the employee is doing the work that he or she is being paid to do."

In reality, the employer owns the building, the workstation, the computer and everything else.

They have the prerogative to know what goes on there.

Roth says the only assertions to privacy that an employee can make at work are in regard to personal human dignity.

"Where invasion of privacy is demeaning, then the law may step in."

Breaches such as this are protected not only by New Zealand law but by the International Labour Organisation (ILO) Constitution.

But Roth says that hidden cameras are not the biggest threat to our personal privacy.

"Increased working from home or teleworking and employees being issued equipment enabling them to be on-call or available for work pretty much 24/7," he says.

"This relatively recent form of work blurs the line between private life and work life and is going to be an issue of increasing importance going into the future."

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