NOTE: This UE Steward has not been updated since it was first published over a decade ago. Some states (like New York) have since passed laws barring employers from monitoring employee phone/email/etc without notice.
Workers at a UE represented factory noticed a crew of outside electricians doing a lot of work in the plant. They were installing an extraordinary amount of new electric exit signs and refurbishing old ones. At first no one thought anything about it, but then someone noticed that instead of regular electric cable running into the signs there was 3/4 inch coaxial cables. The second shift conducted an examination of the new signs and to their surprise they found that each exit sign not only had lights inside them but also had miniature video cameras that were set to watch the workers!
At another UE represented workplace, the office and clerical workers were notified by management that they were not to conduct personal business while on the clock. Most employees treated this as just as another one of those bureaucratic notices that bosses post from time to time. A few weeks later, several employees were given written warnings for conducting personal business on work time. Management's evidence was email letters that had been taken from the employees' personal inter-office email accounts! Since the letters were of a personal nature and didn't have anything to do with work, the boss accused the workers of "stealing time."
This is all part of a growing trend of employers spying on workers. While most bosses say this is just part of an effort to stop "theft" or to prevent "drug usage," it is in most cases just another way to put pressure on workers to produce more; it is part of speed-up. Research shows:
- In 1990 according to one survey, about 8 million workers were subject to some form of electronic surveillance by their employer.
- In 1996 the number had risen to 20 million workers, and this is just based upon the employers who admit to spying on their employees.
- In a 1993 survey of large corporations, 22 percent admitted they spied on their workers with some form of electronic surveillance and never told employees they were being monitored.
- By 1999, 45 percent of employers maintained active and continuous monitoring of employees.
- The latest surveys show that 67 percent of employers use some form of electronic spying on employees.
- The software most employers use is "Websense," which tracks an employees use of the Internet and "MIMEsweeper," which spies on email use.
Is spying grievable?
A Model Policy on Workplace Surveillance
The "The National Workrights Institute" has written a model policy for employers to adopt in regards to workplace surveillance. Of course we know that most employers will not adopt a reasonable policy without some pressure. With some adaptations, this policy could work for UE workplaces. The biggest adaptation needed is for allowing Union Stewards and Officers the use of workplace communication for Union business; just as in the past in many UE worksites the Union negotiated telephone access for Union business we now may need to negotiate email and computer access for Union business. Same policies, just different equipment. The other change must be to add that the employer will negotiate new policies with the Union, not just inform and review the new policies with employees. Here is the model agreement:
1. Personal Use of Equipment
Computers, telephones, and other equipment are intended for business use. We understand that situations will arise in which employees need to use equipment for personal reasons. Personal use of company equipment should be kept to a minimum and not abused. If personal use involves more than incidental cost (such as volume photocopying or making long distance telephone calls), this must be reported to your supervisor. The company reserves the right to require reimbursement for these costs. Reimbursement will be made at the company's actual out of pocket cost, not at commercial rates.
2. No Secret Monitoring
Managers need to keep track of the work of the employees for whom they are responsible. Sometimes the best way of doing this will be through electronic data collection rather than through direct observation of the work by the supervisor. We will review all proposed programs of this type with you before they are approved. A complete written description of all programs which are approved will be given to employees before the program is begun. Except for investigations into serious misconduct, there will be no secret monitoring.
3. No Personal Monitoring
All electronic monitoring will be confined to employees' work. We will not monitor personal telephone calls, electronic mail, or other personal communications. We may, however, conduct call accounting for expense allocation purposes and to ensure that the bulk of your communications at work involve company business. Such monitoring will reveal only the identity of the party with whom you communicated, not the content of your communication. Nor will we monitor break rooms, cafeterias, or other areas in which work is not ordinarily performed except in areas where monitoring is needed to protect your safety, such as stairwells and parking lots.
4. Notice of Monitoring
If we monitor a business related telephone call or other form of communications, we will inform you of this monitoring at the time the monitoring takes place. In the case of telephone conversations or electronic mail, this notice will take the form of a blinking light on your telephone or computer screen. Some have urged us not to give this notice because they believe that employees will not consistently do their best if they know when their work is being monitored. We think more highly of our employees than this, and do not believe that we have to keep you in the dark about your monitoring schedule for you to do your best.
If we need to access a document that is stored in your computer or other location which is not generally accessible, we will ask you to retrieve the document. Only if you are not available will we access your hard drive or other storage area directly. In this event, we will let you know when we accessed your records and the document we retrieved.
5. No Monitoring in Private Areas
We will not conduct video monitoring of locker rooms, bathrooms, or similar private areas under any circumstances.
6. Personal Information
We will collect personal information about you only to the extent it is necessary to comply with the law or for essential business operations such as benefits administration. All personal information we collect about you will be kept confidential. We will reveal information about you within the company only to those who need it to perform their jobs. We will release information to parties outside the company only with your consent or when legally required to do so. If we are legally compelled to release information about you to a third party, we will inform you.
The general answer is yes. The basic Union approach must be that any time the employer wants to make a change in our working conditions (and using surveillance on workers cannot be considered a "minor change"), then we can grieve the changes and demand the employer bargain over them. The section of the contract to quote is usually the Recognition Clause.
If we ever suspect that the boss is using surveillance cameras, or reading email, confront management with the accusation. If the boss admits doing it, immediately file a grievance. Have everybody sign it to let the boss know they don't like being spied on.
Remember, this is a two step process. First, the grievance is filed over a change in working conditions being made without bargaining with the union. The remedy must be stated. Usually it will be that the employer stop the surveillance immediately. Second, a separate letter is given to the employer demanding they enter into negotiations with the Union over their intent to spy on the members.
Is there legal protection?
As in most cases concerning the rights of workers, the laws are not good or don't exist. We have to depend on our strength as a Union to back up the grievance procedure. When the boss is caught spying on us it is easy to make up stickers and buttons with catchy slogans.
The NLRB has ruled on some issues of spying or privacy. In a 1997 ruling concerning Colgate-Palmolive, the NLRB ruled that the company's installation and use of hidden surveillance cameras was subject to mandatory bargaining with the Union. They have also ruled that it is illegal to install video cameras in areas that demand privacy, like bathrooms, locker rooms, changing areas, etc. The NLRB has previously ruled that making current employees take drug tests (except if they are covered under Federal law) is also a mandatory subject of bargaining. The same applies to the use of lie detector tests. The NLRB has not ruled on employers listening in on employees' phone calls or reading their e-mail, thus we must fight these cases solely based upon our contracts and membership strength. Court rulings on employers reading employees' e-mails or listening to their phone calls are not good. They tend to agree that this kind of snooping is "good business practice."
Electronic Monitoring Causes Stress
A study was recently done by the University of Wisconsin on the increase of stress brought on by monitoring employees. They studied AT&T and other phone company employees throughout the United States. The study included employees who knew they were under continuous monitoring and those not being monitored. The study showed that among the employees who were being spied upon there was a 27% increase in pain and stiffness in shoulders; a 23% increase in neck pressure and a 21% increase in back pain. Although monitoring employees may get them to work faster, the study found that it also increased medical costs to the employer.
What do the bosses think?
The consulting companies that advise employers on their "rights" make the following points:
- The Bill of Rights of the U.S. Constitution doesn't apply to workers and bosses in the private sector, it only applies to the government and citizens. They do caution employers against unreasonably searching employees' belongings. It should be noted that the Bill of Rights does apply to public sector workers because it is the government taking action against citizens. Here again the court decisions allow governments a lot of leeway when spying on workers.
- They advise employers to tell workers up front that they will be spied on using every conceivable means. This supposedly makes being spied on a "normal condition of employment" so that when a worker finds the video camera in the bathroom they can't complain.
Remember, just because bosses can get away with some things in a non-union workplace, doesn't mean they can do the same in workplaces with unions.
With the UE we have rights. It is your job as a steward to enforce these rights.
A bipartisan trio of lawmakers recently introduced legislation in both houses of Congress that would prevent firms from secretly monitoring employees' email and Internet use.
Sen. Charles E. Schumer (D-N.Y.) and Reps. Charles Canady (R-Fla.) and Bob Barr (R-Ga.) jointly proposed the Notice of Electronic Monitoring Act, which would require companies to notify workers if their email messages, Internet activity or phone usage are being monitored by supervisors. "We would never stand for it if an employer steamed open an employee's mail, read it and put it back. It is the same thing with an employee's email," said Schumer. As could be expected, numerous employer organizations have expressed their opposition to the bill.