Role of MIS: Employee Privacy Rights in the Workplace

The Information Age came upon us. As a concept, or stage of human history, it suggests a number of propositions. It implies that there is more information now than ever before an indisputable claim. The concept also implies that more people spend more time producing and using more information than ever before another indisputable assertion.

In recent years and for the foreseeable future, organizations have been facing rapidly changing business environments which have challenged their executives (both Management Information Systems (MIS) and non-MIS) to handle issues such as downsizing, outsourcing, leveraged buyouts, strategic alliances, flexible manufacturing, just-in-time scheduling, globalization, business process re-engineering and total quality management. These environmental changes have placed demands on there MIS departments to support product innovation, new production techniques and changing organizational designs and to provide timely, high-quality information.

The introduction of the Internet, e-mail, and other forms of electronic communication has revolutionized the workplace and given rise to new and improved business practices, including widespread access to information and instant communication among suppliers, customers, and employees. Management encourages employees to make full use of these new electronic tools to further the company's business objectives and that is where Management Information Systems are employed. However, increasing use of electronic communication has spawned new forms of employee misconduct.

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As management responds to employee abuse of electronic communications, the tension between management fights and employee privacy fights is heightened. Management wants to be free to fully monitor electronic communications to ensure that they are used for legitimate business purposes in the company's best interests. Employees seek to safeguard their privacy and want the freedom to use these new electronic tools for personal and business purposes. This ongoing struggle - between privacy and management fights - underlies the legal issues arising from employee e-mail and Internet use around the world.

Data Analysis

The extended theory founded on this core belief divides U.S. economic history into different eras, depending on the primary economic activity during the period (Duncan 1994). From colonial times until late in the 19th century, the American economy was agrarian. Then, roughly from the dawn of the 20th century through the end of the Second World War, it was preeminently a manufacturing economy. Industry especially heavy industry was the motor that drove the entire economic engine. After World War II, the American economy increasingly came to be dominated by its service sector. By the mid-1950s, more than one-half of all U.S. employment was devoted to providing services rather than to fabricating goods (Duncan 1994).

The Pre-Information Age business office was supported by the hierarchical managerial system to keep track of employees and the work they produced (Dmytrenko 1992). Office equipment included information producing tools, such as typewriters and adding machines. Most of the equipment was simple, manual in operation, bulky, and noisy. Clerical staff primarily used this equipment, as they were the appointed information processors of the time. Early efforts to improve office efficiency used industrial engineering techniques, employing time and motion studies to standardize the work tasks of office support staff, and maximize the workflow through effective office design.

Information management was categorized as an intensely manual recordkeeping process (Dmytrenko 1992). Filing systems (alpha and/or numeric), and cross-referenced indexes were the prevailing records management techniques employed, and to be on the safe side, offices maintained multiple copies of the same document for back-up purposes. These practices resulted in increasing demands for office space dedicated to files.

The Information Age is reshaping the office of the 2000s. One source of confusion is the fact that the movements from manufacturing to services, and then to information, were of a different character than in earlier transitions. In the first place, while the transition from an agricultural to a manufacturing-based economy was marked by a decline in the number of jobs in agriculture, there has been no such diminution in the number of manufacturing jobs after the shift to a service economy. Moreover, American manufacturing currently accounts for roughly the same percentage of U.S.

Gross Domestic Product (GDP) as three decades ago (Duncan 1994). Changes are taking place in the organizational structure and operations of businesses. Identifying and handling key issues in the MIS is essential for executives to support and run their organizations efficiently and effectively. The investigation of the key issues by researchers serves to enhance the understanding of the concerns of executives and suggest relevant areas of investigation by management researchers.

Employers are concerned that their employees are spending a considerable amount of time on the Internet, browsing and sending e-mails regarding subjects that are totally unrelated to their job duties during work hours. In addition to harming productivity, employee access to the Internet creates more opportunities for employees to engage in virtually unprotected speech that could create liability for the employees and their employers.

Most worrisome is the possibility that computers are used to download pornography or materials offensive to minorities which may then be distributed around the office in electronic attachments or printed and viewed by groups of employees. Such conduct could in turn lead to harassment complaints by employees. The widespread and rapid distribution of offensive or discriminatory material can poison a work environment and may also give rise to criminal charges.

The ability of employees to transfer company information via e-mail that does not have sufficient confidentiality protection, such as a nondisclosure agreement, to outsiders puts that information at risk of losing its status as a trade secret and puts the employer at a distinct disadvantage with the loss of information. Employers might wish to discipline or discharge employees who jeopardize company proprietary information.

The Internet also contains content protected by copyright or other proprietary fights, opening up the potential for direct, vicarious, or contributory copyright infringement liability claims against employers should the information be downloaded and utilized without the proper authority.

At common law, the employer is vicariously liable for torts committed by an employee in the course of his or her employment. Therefore, the doctrine attaches to the employer's responsibility for the tortuous conduct of the employee without the existence of fault on the part of the employer. However, this doctrine does not absolve the employee from liability for tortuous conduct, and the employer may, in fact, claim an indemnification against the employee for moneys paid to a third party due to vicarious responsibility.

For these reasons, many employers have begun monitoring employees' use of e-mall and the Internet which raises issues related to the employee's fight to privacy and about the new privacy legislation. It is becoming more commonplace for inappropriate and illegal Internet usage to be the determining factor in employee discipline and dismissals in unionized settings. The only question to be determined now is whether the inappropriate e-mails and Internet usage are just cause for dismissal. Arbitrators weigh each fact situation to determine the extent of the disciplinary offense and the appropriateness of management responses in the context of the collective agreement.

Although e-mail is likely included in the definition of "telecommunication," the real issue lies in whether or not e-mail monitoring on a computer desktop or server falls within the definition of "intercept." Due to the way that e-mail is transmitted, it is unlikely that it could be intercepted as defined in the Criminal Code. "Intercept" means interference between the place of origin and the place of destination of the communication (Rasky, 1998).

E-mail is transmitted from one computer through (usually) two Internet Service Providers onto a network server, and once that is complete so is the transmission. Consequently, the e-mail is simply just waiting to be retrieved by the recipient from the network. As a result, an employer that views a message which has been sent and saved onto a company's server is not really intercepting the message within the meaning of the Criminal Code (Coon and Cocker, 2001).

There is no definitive ruling on who owns the e-mail in the issue of e-mail sent or received by an employee via his or her employer's computer system. This could be argued in two ways. One view is that e-mail sent or received in this context is property of the employer, to which an employee maintains no reasonable expectation of privacy. Thus, a search of e-mail in the workplace is really nothing more than a search of an employer's property (Rasky, 1998, p. 221).

A second perspective is to view sent or received e-mail as the property of the employee. Employers assign employees e-mail addresses and allow employees to have e-mail passwords. Thus, this approach suggests that employees have a reasonable expectation of privacy in their workplace e-mail (Mclsaac, 2000, p. 2-86).

The courts to date have not specifically addressed the issue of e-mail privacy within the workplace, although it was held in R. v. Weir (1998) that an individual's home e-mail via the Internet "ought to carry a reasonable expectation of privacy." Therefore, as Internet and e-mail monitoring becomes more commonplace in the workplace, the only deterrent to employers may be couched in terms of the new privacy legislation and the required consent that will be required of an employee when an employer wishes to monitor.

The focus would then be shifted to one of the reasonableness of the substance of implementation of the consent and monitoring policy along with the various factors inherent in that implementation such as the notice given to the employee of the search policy, the clarity of the policy, and the fairness of the administration of the policy (McIsaac, 2000, p. 2-87).

Conclusion

The Information Age suggests that the role of information is more important in the economy than ever before, and that information is replacing some earlier "fuel" of the American economy (Duncan 1994). These days the primary problem for most organizations and their employees is not the shortage of data but being able to evaluate what is useful and what is not, where to find the good stuff, and then how to use it effectively.

The rapidly increasing use of Internet and e-mail in the workplace has introduced complicated issues related to the areas of potential liability of employers arising from the improper use of the Internet and e-mail by employees, as well as creating numerous privacy issues which must soon be addressed by all employers - union and nonunion. If employers specify and disseminate clear and concise e-mail and Internet use policies, they will be able to significantly reduce the risk associated with employee misconduct in this area. Not only should the policies be clear and concise, but they should also be communicated to the employees in such a fashion that all employees understand the policy and the consequences of breaching that policy.

Employers can be concerned that their investments and MIS tools are being misused by employees, but at the same time clear communication and respect for the fights of employees and their privacy will encourage a positive, healthy work environment along with a decreased risk for potential liability for all parties involved. We agree that the Canadian Courts and arbitrators will need to make a concerted effort to understand the new technology and the various problems that arise as a result of that technology and then strike a balance between employee fights to engage in concerted activities vs. employer property and entrepreneurial fights.

References

• Coon, Kevin & Jonathan Cocker. (2001) Legal Issues of E-mail and Internet Access in the Workplace. Internet and E-Commerce Law in Canada 1. January 2001: 81-87
• Duncan, Joseph W., (1994) The Information Age on Shaky Foundations, Challenge, 05775132, Jan/Feb94, Vol. 37, Issue 1
• Mclsaac, Barbara. (2000). Law of Privacy in Canada. Scarborough: Carswell.
• Rasky, Holly L. (1998). Can an Employer Search the Contents of Its Employees' E-mail? 220 Advocates Quarterly 20: 221-28
• Dmytrenko, April, L., (1992) The information age has arrived or `much ado about everything', Records Management Quarterly, 10502343, Oct92, Vol. 26, Issue 4

Case:

R. v. Weir (1998) 213 A.R. 285 (Q.B.)

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