Publication Date: December 20, 1996

Employee Monitoring Still a Thorny Issue

By Sue Mellen

To many people, there have never been more compelling reasons to monitor and regulate employee activities. As more workers trade car keys or transit passes for modems in home offices, and still more spend large portions of their workdays in an entertainment-laden Web environment, managerial control becomes more elusive and harder than ever to define.

Certainly there is no shortage of products designed to help employers maintain control, track productivity and ensure security. There also is no federal regulation of electronic workplace surveillance, and most states have yet to begin tackling the issue. So while the decision to use employee-monitoring technology seems like a no-brainer to many managers, others say aspects of the practice raise ethical red flags.

Microsystems Software Inc. in Framingham, Mass., is a world-leading producer of Internet filtering software. The company's product list includes the highly publicized Cyber Patrol (with versions for home and corporate use) and Cyber Sentry for corporate networks; both products allow administrators to block access to "undesirable" URLs. Company spokeswoman Susan Getgood says there are some very good reasons for managers to control Internet use by employees. Sometimes, she says, it is just too tempting to log on and zone out of a boring job.

"The insurance industry just announced that it will begin using the Internet to process claims. I think being an insurance clerk must be the most boring job in the world. What's the temptation here for people to abuse the 'Net and surf their way over to General Hospital.com?" she asks.

Then there's the danger of picking up something more than General Hospital's plot line during a surfing break. "Of course we know that people often bring along viruses that might run through a whole system. That's a big danger out on the 'Net," Getgood says.

Basically, the various Microsystems filtering products work by creating outgoing firewalls that can be configured to block access to any unknown or unacceptable Internet protocol address. A system administrator can also incorporate Microsystem's CyberNOT list of undesirable URLs. The company's assessment team (which includes teachers, parents and Microsystems managers) reviews the list on a weekly basis, grouping sites into the following categories: partial nudity; nudity; sexual acts/text; gross depictions; racist/ethnic; gambling; satanic/cult; drugs and drug culture; militant/extremist; violence/profanity; questionable/illegal; and alcohol, beer and wine. There is also a sports and leisure category, containing sites that can be blocked during specific times or days.

Here's where the question of appropriate workplace behavior versus employee privacy comes in: Whenever a user connects to WINSOCK in the process of activating a browser application, the connection is metered and automatically downloaded to the administrator's workstation. Microsystems says the metering feature is an important tool for assessing overall computer use and for billing services, but the feature also allows managers and administrators to determine who in the corporate system is waxing up a cyber-surfboard just a little too often.

A similar issue arises with the SofTrack metering products available from ON Technology Corp. of Cambridge, Mass. The SofTrack system is designed to prevent companies from violating software license agreements. When a user executes an application loaded on the workstation, the SofTrack system determines if a license is available. If so, it allows the user to access the application and it reduces the number of available licenses by one. If all licenses are in use, SofTrack places users in a queue and notifies them immediately when licenses become free.

In the process of addressing the legal issue (copyright laws on software), the SofTrack system also records each attempt by a user to access a particular application. The running log of each workstation's activity is available to the system administrator.

Sometimes, Another Approach Is Better

Janis Gogan, a Bentley College professor and authority on how organizations deal with emerging technologies, says that, rather than trying to track productivity, managers should concentrate on "being good coaches," helping workers set and achieve realistic goals. Corporations should spend their dollars on good managerial training programs rather than on filtering devices. Such applications, she says, reflect a narrow definition of the word "work-related."

"There were similar discussions about lost productivity when the PC first came into the workplace and everyone was afraid people would spend too much time playing games and refining graphics skills. But as it turned out, that time was important in helping people learn computer skills. The concept of managerial control leading to increased productivity is pretty much an illusion anyway. The most successful companies are often the ones where employees have the greatest degree of independence," she says.

But a great many companies reject Gogan's line of reasoning in favor of electronic monitoring. According to data published by the American Civil Liberties Union, more than 20 million people in the American work force may be subject to electronic monitoring through their computers. That number is based on a Macworld magazine survey involving more than 300 U.S. businesses of various sizes and industries. Researchers found that 22 percent of the businesses polled used computer-based electronic surveillance, usually without their employees' knowledge. The researchers then used that figure to project how many people in the general work force could be under their system administrators' watchful gazes.

Since 1990, the ACLU's National Task Force on Civil Liberties in the Workplace has been promoting legislation to restrict the use of electronic monitoring (as well as genetic and drug testing). The organization has had some limited success in the areas of genetic and drug testing, but almost none in curtailing electronic monitoring. The Privacy for Consumers and Workers Act, introduced in Congress in 1993, would have required employers to inform new employees of any electronic-monitoring practices. But the bill was not enacted in time for the 1994 elections, after which the conservative political climate in Congress made passage of the legislation impossible.

U.S. Sen. Paul Simon (D-Ill.) had been one of the bill's sponsors. Before giving up the fight in the wake of the 1994 elections, he said, "It is a sad irony that while the FBI is required by law to obtain a court order to wiretap a conversation, even in cases of national security, employers are permitted to spy at will on their employees and the public."

Despite what would seem to be virtual carte blanche in the private sector, it has been extremely difficult to muster political support for anti-surveillance legislation, says Lewis Maltby, director of the ACLU task force. "We're not sure exactly why, but people in this country will tolerate treatment in the workplace they would never accept from the government. I was on Oprah recently and people in the audience were appalled at the extent of electronic monitoring in the workplace. But somehow that reaction doesn’t translate to political pressure," Maltby says.

On a state level, only Connecticut deals with the issue in any way, with legislation prohibiting monitoring "in areas designated for the health or personal comfort of employees or for safeguarding their possessions or contract negotiations." As for any action in Washington, Maltby says, "We're not even going to waste ink working on new legislation. We know the political support is not there."

So, for the time being at least, a dearth of regulation means employers and managers are legally free to make their own decisions about whether to use software tracking products to monitor employee activities. But, as the ACLU’s Maltby points out, legality is only one consideration.

"In Japan, managers have generally opted not to use electronic monitoring because of its potential negative effect on working relationships. I think they have the right idea."

Sue Mellen writes from Tyngsboro, Mass.

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