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Dish the Dirt, Lose Your Job?

The Annoyance:

My employer "monitors calls for quality assurance" between me and the company's customers. If I happen to say something nasty and vile about my vile, nasty boss, can he fire me?

The Fix:

It depends on whom you're talking to. Businesses that monitor phone calls aren't legally allowed to eavesdrop on private conversations. So if you call your boss names while you're on the phone with your spouse, technically they're not allowed to listen. Of course, your supervisor could overhear you saying it at work, or the tattletale in the next cubicle could repeat this information to your boss. That's all perfectly legal.

According to the NWI's Lewis Maltby, as long as employers aren't violating your civil rights, they are free to fire you at any time for whatever reason. "Your boss could fire you for writing a letter to the editor," Maltby says. "He could fire you because he doesn't like the way you part your hair or because his wife burnt the toast that morning."

The exception: a company can't fire you if doing so would violate a federal or state law. For example, your employer is forbidden to fire you simply because you filed a worker's compensation claim against it. Your boss also can't fire you for refusing to do something that's against the law (like cooking the books or lying to the SEC). And if you have an agreement with your employer that lays out grounds for dismissal, your boss has to follow it, though you might have to go to court to enforce that contract. Your options? Negotiate a work agreement that describes exactly how and when your employer can terminate you, or keep your lips zipped until the boss is truly out of earshot.


Your boss may eavesdrop on your conversations at work, but what you say on your own time is your business, right? Well, not if you do it on the Web. Michael Hanscom, a temporary employee doing a stint at Microsoft, discovered that simply publishing a photo is enough to get you fired. In October 2003, Hanscom snapped a shot of some Apple PowerMacs being unloaded from a truck at the company's Redmond, Washington headquarters and published it on his personal blog. A few days later he was contacted by his supervisor and asked to not return. He had apparently violated internal Microsoft policies prohibiting photographs taken on company property. (Microsoft has never revealed how it happened to find out about the photo.)

Still, that's small potatoes compared to Jessica Cutler, a former staffer for U.S. Senator Mike DeWine (R-Ohio). The 24-year-old Cutler got canned after publishing a scandalous blog under the name "Washingtonienne," detailing her many affairs with office coworkers, including a paid sexual arrangement with an agency head in the Bush administration. The official reason for Cutler's termination was misuse of Senate computers. They should probably be happy she didn't publish photos.


In his book The Naked Employee, author Fred Lane describes a how a benevolent corporation should treat employee privacy. Short of Congress enacting an Employee Bill of Rights (don't bet on that one), there's nothing to force any private employer to follow such rules. But you might want to photocopy this page and put a copy in the company suggestion box—or on the CEO's desk.

  • Get permission first. Companies should obtain employees' consent before acquiring personal information about them. As part of the process, employers should disclose what types of information they're seeking and how it relates to job performance.

  • Provide full disclosure. If you're going to spy on your employees, tell them first. Be specific about what you're monitoring and why you're doing it—before applicants agree to take a job there.

  • Limit the spread of information. Train employees in sensitive positions to avoid disclosing personal information unnecessarily to third parties. A landlord might need to verify that Hercule in accounting is gainfully employed; he doesn't need to know that Hercule is a total slob who's been late to work every day of his career.

  • Don't misuse medical data. If you're going to seek information about an employee's medical history or lifestyle choices, make sure that data is directly related to the work he or she is being hired to perform—not to its potential impact on the company's health insurance premiums.

  • Avoid needless drug tests. If you must test, do so only in cases where suspected drug abuse may be hurting an employee's ability to perform. A better alternative is impairment testing, which measures actual abilities, not trace elements in the bloodstream (see "This is Your Job on Drugs").

  • Preserve boundaries between work and home. Telecommuters shouldn't have to give up more of their privacy just because they're no longer within their supervisor's field of vision.

"In most companies there is a potential for dialog about how workplace privacy should be handled," says Lane. "Most companies want to create a good environment for employees, and they recognize that too much surveillance damages that."

(Adapted by permission of the publisher from The Naked Employee by Frederick S. Lane III, copyright 2003, Frederick S. Lane, published by AMACOM Books, New York, New York. www.amacombooks.org.)

Medical Records May Be Hazardous to Your Job

The Annoyance:

My child has a chronic health condition. I've used my employer's health insurance plan to cover part of the costs of his treatment. Now I'm looking to switch jobs. Can my new boss find out about my child's health history and use that to as an excuse to hire someone else or deny my family insurance coverage?

The Fix:

Legally, your new boss shouldn't find out, but that doesn't mean he won't. The Health Insurance Portability and Accountability Act (HIPPA) prohibits health care providers from sharing identifiable information with your employer without your written consent. So in theory, your new boss need never know about your child's health history. But naturally there are exceptions. If your employer is paying for your health care costs out of its own pocket, it would have access to your medical records, though it can't legally share them with other parties or other employees not involved with administering the health plan.


If you work for Uncle Sam, you probably have more workplace privacy rights than the rest of us. Federal, state, and local government employees are protected by the Constitution's limits on unreasonable search and seizure, which can keep bosses from snooping around you or your computer without sufficient cause. Government workers also enjoy greater access privileges to information, such as their own personnel records. Strange as it seems, these Constitutional protections end when you walk through the doors of Corporate America, though a handful of states (such as California, Florida, and Massachusetts) have statutes that apply Constitutional limitations to all employers. Otherwise, private sector employees have few legal privacy rights. For more information, see the Workplace Fairness site (http://www.workplacefairness.org).

On the other hand, if your employer isn't providing health care (i.e., a third-party insurer is paying the claims) and it obtains your medical information via other means, HIPPA doesn't apply. While your boss can't go to your doctor and demand your medical records without your consent, he can find out in other ways—for example, if you sign up for an employee assistance program to deal with a substance abuse problem. Information you provide on job applications or via work-related physicals, anything that turns up in a background check, health secrets you disclose in ordinary conversation—all are fair game.

"One of the biggest workplace privacy risks is employer access to medical records," says author Fred Lane. "That one is harder to quantify because it's not supposed to happen. But with the growth of self insurance by employers and rising medical costs, there's a tremendous incentive for employers to gain access to that information."

If your boss violates your rights under HIPPA, you can file a complaint with the U.S. Department of Health and Human Services Office for Civil Rights (http://www.hhs.gov/ocr/hipaa). For more information on your rights under HIPPA and how to file complaints, visit the Health Privacy Project web site (http://www.healthprivacy.org). There you'll also find summaries and links to various state laws, which may offer more medical privacy on the job, depending on where you live.


If you're taking a company car on a personal outing, be careful where you park it. According to a March 2001 story in the New York Times, an employee at a car alarm company in Dallas lost his job thanks to a Global Positioning Satellite tracking device the owner had placed in the car. Using GPS data, the owner discovered one of his Dakota pickup trucks was spending a fair amount of time in the parking lot at the Million Dollar Saloon, a local strip club. The employee was forced to secure alternate means of transport—as well as income.

Cameras, Cameras, Everywhere

The Annoyance:

I can't go to the bathroom without passing under the ever watchful eye of a surveillance camera. Company management says the cameras are there for our protection, but I can't help feeling like I'm being spied on. Is there anything I can do to stop it?

The Fix:

With few exceptions, employers are free to videotape you if you're in a public or open area, or if you've given your consent to be taped. (You may have given consent without knowing it; for example, by accepting an employee handbook that had information about the company's monitoring policies buried inside it.) If they're filming you while you're in your skivvies, though, the law may be on your side.

According to privacy attorney Parry Aftab, "when the video surveillance is hidden, or records areas generally considered 'private,' such as rest rooms or dressing rooms, the courts have been divided on whether an invasion of privacy has occurred." The key is where the court is located and whether it determines you have a "reasonable expectation of privacy."

For example, in January 2002 the U.S. Supreme Court let stand a decision barring Consolidated Freightways from placing hidden cameras in employee restrooms, despite a collective bargaining agreement with a local Teamsters union that allowed such surveillance. The cameras were found to violate a California state law barring such "toiletcams." The state of Connecticut also bars video cameras from areas such as employee lounges or locker rooms. If your state has statutes prohibiting invasions of privacy (as California, Connecticut, and Massachusetts do), your odds of prevailing in court are much better. Of course, bringing suit is a last resort. You may have better luck by banding together with similarly aggrieved coworkers and asking your employer to remove cameras placed in sensitive areas. (For more on monitoring, see Aftab's site at http://www.aftab.com/videotapinglaw.htm.)

The Searchers

The Annoyance:

My employer insists on searching my office, my desk, even my backpack. What gives her the right?

The Fix:

The real question is, what can prevent her from doing this? And the sad answer is, not much. A 1999 survey by the Society for Human Resource Management and The Wall Street Journal's CareerJournal.com site found that nearly half of HR managers thought it perfectly acceptable for an employer to search an employee's office or desk. (Not surprisingly, only one in five job seekers considered this a reasonable search.)

In this area, public sector employees may be able to lean on Fourth Amendment protections against unlawful search and seizure. With private companies, the law leans the other way. Your employer generally needs a valid reason for the search—such as suspicion of theft. And, as with video and electronic monitoring, the search shouldn't impinge on reasonable expectations of privacy. If you work in an office where personal searches are rare, and your employer has no reason to suspect you of wrongdoing, your expectation of privacy may be fairly high. If you work in a jewelry store where employee bags are periodically checked, your expectations should be much lower.


Projected sales of web monitoring software by 2007
1 in 5
Companies had business email subpoenaed in 2003
1 in 4
Firms that have fired employees for violating written email policies
Percentage of management employees who send or receive personal email at work
1 in 3
Employees send sexual content to coworkers over email
Percentage of U.S. corporations that require employees to take drug tests
Estimated cost of identifying one employee with a substance abuse problem
Percentage of companies that have analyzed the effectiveness of their drug testing programs
Sources: Frost & Sullivan, American Management Institute, SurfControl plc, ACLU

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