Snooping Bosses

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The Facebook set may not like it, but courts are mostly giving the O.K. to corporate spying. "I haven't seen one case where an employee has won on a right-of-privacy claim," says Anthony Oncidi, head of the labor and employment department at law firm Proskauer Rose. Companies can ward off privacy claims if they have informed staff members they're being monitored, even if only in a single sentence in a rarely read handbook. Even when there is no advance notice, workplace-privacy claims have proved hard to win. Only two states (Connecticut and Delaware) require bosses to tell workers they're being monitored, but even in those places, there aren't restrictions on spying.

Businesses argue that their snooping is justified. Not only are they trying to guard trade secrets and intellectual property, but they also must ensure that workers comply with government regulations, such as keeping medical records and credit-card numbers private. And companies are liable for allowing a hostile work environment--say, one filled with porn-filled computer screens--that may lead to lawsuits. "People write very loosely with their e-mails, but they can unintentionally reach thousands, like posters throughout a work site," says Charles Spearman of diversity-management consultants Tucker Spearman & Associates. "In an investigation, that e-mail can be one of the most persuasive pieces of evidence." In fact, a ruling in New Jersey last year found an employer had a duty to investigate an employee's viewing of child pornography and report it to the police.

The monitoring trend could get even more Orwellian. In Thompson v. Johnson County Community College in Oklahoma, the court held that employees had no expectation of privacy in a locker room because the room had pipes that required occasional maintenance. (The need to service the pipes was enough for the court to let the employer use video surveillance.) The wave of the future seems to be radio-frequency identification, a transmitter smaller than a dime that can be embedded in anything from ID cards to key fobs to hospital bracelets (to safeguard newborns, for instance). Now consider Compliance Control's HyGenius system, which detects restaurant employees' handwashing and soap usage with wireless communication from clothing tags. Skip the soap, and you are in hot water.

Think that's invasive? At Citywatcher, a Cincinnati, Ohio, company that provides video surveillance to police, some workers volunteered to have ID chips embedded in their forearms last June. No more worries about lost or stolen ID cards, the employer claimed. Sure. No more privacy either.