Academic journal article Albany Law Review

"Eye in the Sky": Employee Surveillance in the Public Sector

Academic journal article Albany Law Review

"Eye in the Sky": Employee Surveillance in the Public Sector

Article excerpt

Developments in modern technology, such as digital video, GPS, and email and computer monitoring software, have made it exponentially easier for employers to monitor and investigate employees, safeguard company property, and increase employee productivity. (2) However, as these forms of surveillance technology become more readily accessible to a majority of employers, more and more employers are at an increased risk of infringing upon employee rights. This is especially true in the public sector, where, in New York, employers are bound by the strictures of the Taylor Law, (3) which governs the rights of unions for public employers in New York, as well as the limitations on warrantless searches and seizures pursuant to the Fourth Amendment of the United States Constitution. (4) In addition, public employers must be wary of the multitude of state and federal statutes designed to protect employee privacy. (5)

The widespread use of such surveillance by employers in recent years has been well-documented:

* a 2007 survey (6) conducted by the American Management Association ("AMA") and the ePolicy Institute found that, among the companies surveyed:

** 66 percent monitor employee Internet activity; (7)

** nearly half (48 percent) use video monitoring to counter theft, violence, and sabotage, while 7 percent use video surveillance to track employees' on-the-job performance; (8)

** 45 percent monitor time spent and numbers called from office phones, while another 16 percent record phone conversations; (9)

** two studies by Aberdeen Group in 2012 found that 62 percent of employers with field employees use GPS to track staff, as reported by Workforce Magazine; and (10)

* a 2013 poll found that 37 percent of the hiring managers and human resources professionals surveyed use social networking sites to prescreen candidates for employment. (11)

This article will summarize and analyze the cases and statutes that define the legal framework within which New York public employers, including school districts, must operate when implementing particular forms of employee surveillance, such as video surveillance, email monitoring, and GPS tracking. Part I will examine a public employer's duty to negotiate when it comes to employee surveillance, and includes summaries of the pertinent decisions of the New York Public Employment Relations Board ("PERB") and discusses what these decisions mean for public employers. Part II will synopsize the pertinent case law interpreting the Fourth Amendment of the United States Constitution, as it applies to searches in the employment context, including the monitoring of employee text messages on employer-issued cell phones, and the installation of GPS on private employee vehicles to track employee whereabouts. Finally, Part III will briefly summarize the state and federal statutes that apply to the different forms of employee surveillance conducted by public employers in New York State.

I. NEGOTIABILITY OF EMPLOYEE SURVEILLANCE

An employer choosing to unilaterally carry out a method of employee surveillance must, in the first instance, ensure that such surveillance does not interfere with the right of its employees to negotiate the terms and conditions of their employment. (12) It can be difficult, however, for management to balance its obligation to supervise its employees, and maintain security of the workplace and its property, with its duty to negotiate. (13) This typically becomes an issue where a particular method of surveillance implicates employee job security, intrudes upon an employee's personal belongings or private information, or interferes with an employee's off-duty time. (14) Improper practice charges relating to employee surveillance can arise in varying contexts, depending on the type and location of the surveillance, the level of involvement required of the employees, and the purpose of the surveillance. …

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