Chapter 7 Edisi 4

ETHICAL
DECISION MAKING:
TECHNOLOGY AND PRIVACY IN THE
WORKPLACE
Chapter 7
Dr. Pepey RiawaA Kurnia, MM., CPM
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TECHNOLOGY & PRIVACY
Ethical Decision Making
This “telephone” has too many shortcomings to

be seriously considered as a means of
communica*on. The device is inherently of no
value to us.
Western Union internal memo, 1876
The Right to Privacy
•  Privacy is a surprisingly Privacy rights

vague and dispute value.
•  Calls for greater protec*on
of privacy rights increased The legal and
–  with the increased used of ethical sources
computers.
of protec*on
•  There is widespread
confusion on the nature,
for privacy in
extent, and value of privacy. personal data
Defining Privacy
•  Two general and connected understandings of privacy.
–  Privacy is the right to be “le, alone” within a personal zone of
solitude, and
–  privacy is the right to control informa3on about oneself.
•  Privacy is important as it establishes the boundary between

individuals and defines one’s individuality.
•  Many believe the right to be “leH alone” is too broad and not
feasible in the workplace.
–  Therefore, the control of personal informa*on is a beIer defini*on.
–  A right of privacy implies control of all personal informa*on, also
unfeasible in the workplace.
–  Perhaps the choice of limita*on or control is one’s sense of privacy.
LEFT ALONE
Ethical Sources of a Right to Privacy
•  The right to privacy is founded in the individual’s fundamental
right to autonomy.
–  This right is restricted by a boundary of reciprocal obliga*on;
•  when an individual expects respect for their personal autonomy, they
have a reciprocal obliga*on to respect the autonomy of others.
–  In the workplace, reciprocal obliga*on implies that
•  an employee has an obligaAon to respect the goals and property of the
employer, and
•  the employer has a reciprocal obligaAon to respect the rights of the
employee, including the right to privacy.
RECIPROCAL
•  There is an approach to ethical analysis that seeks to
differen*ate between
–  those values that are fundamental across culture and theory,
hypernorms, and
–  those values that are determined within moral free space, and are not
hypernorms.
–  Individual privacy is at the core of many of these hypernorms.
•  The value of privacy to civilized society is as great as the value
of the various hypernorms to civilized existence.
–  The failure to protect privacy may lead to an inability to protect
personal freedom and autonomy.
•  Legal analysis of privacy using property rights perspec*ve.
–  “Property” is an individual’s life and all non-‐procrea*ve deriva*ves.
•  May include thoughts and ideas, as well as personal informa*on.
–  Property rights means determining who maintains control over

tangibles and intangibles, including personal informa*on.
•  Why do we assume an individual has unfeIered rights to their
personal informa*on?
–  Private property rights depend on the existence and enforcement of a
set of rules.
–  The legal rules remain vague.
Legal Sources of a Right to Privacy
•  Privacy can be legally •  The Electronic
protected in three ways: Communica*ons Privacy Act
–  by the cons7tu7on, (ECPA) of 1986 prohibits
–  by statutes, and –  unauthorized access of stored
communica*ons.
–  by the common law.
•  Some states use statutes
•  The Cons*tu*on’s Fourth but applica*on to private-‐
Amendment protec*on sector organiza*ons is
against unreasonable limited and uncertain.
search and seizure
•  Case law developed the
–  applies only to the public-‐
sector workplace.
intrusion into seclusion
when one person intrudes
into private affairs of
another.
Table 7.1 Legal Status of Employee Monitoring
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Legal Sources of a Right to Privacy
•  Many recent court decisions with regard to monitoring seem
to depend on whether the worker had no7ce.
•  The basis for finding an invasion of privacy is oHen the
employee’s legi*mate and reasonable expecta*on of privacy.
–  If the employee has no*ce, then there truly is no real expecta*on of
privacy.
–  The company is allowed to monitor even when it promises not to
monitor.
•  Only two states require employers to no*fy workers when

they are being monitored.
•  Nearly half the states prohibit employers from obtaining
social media passwords from prospec*ve or current
employees.
Global Applica*ons
•  Privacy protec*on is more difficult given the implica*ons of
the European Union’s Direc*ve on Personal Data Protec*on.
•  The direc*ve strives to harmonize all the various means of
protec*ng personal data throughout the EU.
–  It also prohibits EU firms from transferring personal informa*on to a
non-‐EU country unless the country maintains “adequate protec*ons.”
–  Replaces a patchwork of 28 na*onal laws.
–  Revisions allow the “right to be forgoIen.”
•  The U.S. did not qualify as having “adequate protec*ons” and
nego*ated a Safe Harbor excep*on for some secure firms.
–  They now act under an agreement called the Data Privacy Accord with
a “Privacy Shield” of principles firms must abide by.
Table 7.2 The European Union Privacy Shield
David Meyer, “Here’s What U.S. Firms Will Have to Do under the EU Privacy Shield Deal” (February 29, 2016), hIp://fortune.com/2016/02/29/privacy-‐shield-‐details/ (accessed March 8, 2016).
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Global Applica*ons
•  Given the legal uncertainty concerning informa*on gathering,
–  perhaps the only source of an answer is ethics.
•  In summary.
–  Employee privacy is violated whenever
•  employers infringe upon personal decisions that are not relevant to the
employment contract – whether the contract is implied or explicit;
•  or if personal informa*on that is not relevant to that contract is collected,
stored, or used without the informed consent of the employee.
–  Further, since consent plays a pivotal role, the burden of proof rests
with the employer to establish the relevancy of personal decisions and
informa*on at issue.
Ethical Decision Making
People have really goIen comfortable not

only sharing more informa*on and
different kinds, but more openly and with
more people – and that social norm is just
something that has evolved over *me.
Mark Zukerberg, cofounder and CEO of
Facebook
Linking Privacy to the Ethical Use of Technology
•  New technology challenges privacy in unimaginable ways.
•  New technology, however, does not necessarily impact our
value judgments but
–  instead provides new ways to gather the informa*on on which to base
them.
•  The lack of legisla*on means workplace disputes become a

maIer of contract law.
•  Do we need “new ethics”?
–  No, because the same values one held under previous circumstances
should permeate and relate to later circumstances.
–  However, the perspec*ve one brings to each experience is impacted
by the understanding and use of new technology.
Informa*on and Privacy
•  To make effec*ve decisions, businesses must an*cipate the
percep*ons of their stakeholders.
–  Google’s moIo is: “don’t be evil.”
•  Yet, Google caused controversy with its Gmail privacy policy.
•  Google mines Gmails, using the informa*on for targeted adver*sing.
–  And argues users have ‘no reasonable expecta*on’ of privacy.
•  The company was previously in trouble over their use of “cookies.”
–  SeIling for $22.5 million for viola*ng terms of consumer privacy.
•  Addi*onal li*ga*on arose over Google’s replacement privacy policy.

–  Google was now data mining Apps for Educa*on.
–  By failing to fully comprehend and plan for its stakeholders’

percep*ons of the programs,
•  Google breached ethical boundaries and also suffered public backlash.
Informa*on and Privacy
•  Necessary elements when
new technology is
dependent on informa*on.
–  Respect for property and
–  Truthfulness and accuracy.
safety rights.
•  The person providing the
•  Areas of vulnerability include
informa*on must be truthful.
network security, sabotage,
–  Respect for privacy. theH, and impersona*on.
•  The receiver of the –  Accountability.

informa*on must use ethical
•  Technology allows for
limits of privacy.
anonymity requiring greater
personal responsibility and
accountability.
Managing Employees Through Monitoring
•  Monitoring employees’ work is one of the most prevalent
forms of informa*on gathering in the workplace.
–  Technology affords an effec*ve, low cost monitoring ability.
•  A 2015 survey found that 21% of employers use e-‐mail

monitoring and Internet use monitoring.
•  We have come to expect that our e-‐mails are the property of
–  or at least subject to search by, our employers.
•  Internet use monitoring is evolving as social media grows.

•  A 2014 study concluded that by 2020, approximately half of
the global workforce will be between the ages of 18 and 32.
–  Bringing different aptudes to work, technology, and personal data.
•  When managing informa*on, ethical issues may be invisible.
•  When we do not completely understand the technology,
–  we might not understand the ethical implica*ons of our decisions.
–  We lose the ability to protect our own informa*on effec*vely because
we may not understand
•  the impact on our autonomy,
•  the control of our informa*on,
•  our reciprocal obliga*ons, or
•  what might be best for our personal existence.
•  Ethical issues are compounded by a knowledge gap exis*ng

between people who do understand the technology and
–  others who are unable to protect themselves because they do not
understand.
•  Technology allows for access •  Technology results in more

to informa*on never before faceless contacts.
possible. •  E-‐mail, tex*ng, and social
–  It can be done in secret, media posts do not carry
–  or even uninten*onally.
the same weight as ‘pupng
it in wri*ng.’
•  Technology means we are
seldom out of the boundaries •  Given the ease and
of our workplace. informality of electronic
communica*on
•  Our total accessibility creates
–  We are more careless with
new expecta*ons and conflict. our communica*ons.
•  Why do firms monitor technology usage?
•  Employers need to manage their workplaces to
–  place workers in appropriate posi*ons,
–  to ensure compliance with affirma*ve ac*on requirements, or
–  to administer workplace benefits.
•  Allows managers to ensure effec*ve performance by preven*ng

lost produc*vity due to inappropriate technology use.
•  Offers employers a method to protect its other resources.
–  Protects proprietary informa*on and guards against theH,
–  protects their equipment and bandwidth, and
–  protects against legal liability.
•  More than 70% of businesses report taking disciplinary ac*on
for misuse of social media.
•  24% have fired someone for misusing the Internet.
•  Without monitoring, how would they know what occurs?
•  As courts maintain the standard of whether the employer
“knew or should have known” of wrongdoing,
–  the defini*on of “should have known” becomes vital.
–  The defini*on will begin to include an expecta*on of monitoring.
Monitoring Employees Through Drug Tes*ng
•  Employers have a longer history of monitoring by drug tes*ng
than by technology monitoring.
•  The employer has a strong argument in favor of drug tes*ng
based on the law.
–  As the employer is responsible for legal viola*ons its employees
commit, their interest in controlling every aspect increases.
–  Employees argue their drug usage is relevant only if it impacts their
job performance.
•  The legaliza*on of marijuana in some places has made for
complicated workplace dilemmas.
Monitoring Employees Through Drug Tes*ng
•  Consider the possibili*es of incorrect presump*ons.
–  For instance, there are warning signs of drug use.
–  But is it ethical to test based on signs when there could be other
jus*fica*ons?
•  A 2014 poll found that of 1,000 HR professionals,

–  58% of companies require pre-‐employment drug tests,
–  28% do not, and
–  14% test only when required by state law or when the posi*on is
safety-‐sensi*ve.
•  Where public safety is at risk, there is a compelling public
interest to mandate drug tes*ng.
–  But what about jobs in which public safety is not at risk?
Other Forms of Monitoring
•  Employers are limited in their collec*on of informa*on
through other forms of tes*ng such as polygraphs or medical
tests.
•  Medical informa*on is protected by the Americans with
Disabili*es Act but also by the Health Insurance Portability
and Accountability Act (HIPAA).
–  HIPPA s*pulates that employers cannot use “protected health
informa*on” without prior consent.
•  Polygraphs and drug tes*ng, physical and electronic
surveillance, third-‐party background checks, and
psychological tes*ng have all been used to gain employee
informa*on.
–  Recently electronic monitoring and surveillance is increasing.
–  Where might this prac*ce develop in the future?
Other Forms of Monitoring
•  One area sure to provide •  GINA does provide for

new ques*ons on privacy is excep*ons.
gene*c tes*ng. –  An employer can collect
gene*c informa*on to
•  The Gene*c Informa*on
Non-‐Discrimina*on Act •  comply with the Family
Medical Leave Act, or
(GINA) 2008 prohibits
•  monitor the biological
–  discrimina*on based on effects of toxins in the
gene*c informa*on. workplace.
–  Under GINA, your gene*c –  If collected, the informa*on
informa*on is also your may only be released under
family’s medical history. certain circumstances.
Ethics and Business
Things do not change; we change.

Henry David Thoreau
Business Reasons to Limit Monitoring
•  Employee advocates suggest limi*ng monitoring.
–  Monitoring may create a suspicious and hos*le workplace.
•  The employer is neglec*ng a key stakeholder – the worker.
–  Monitoring may constrain effec*ve performance since it can

•  cause increased stress and nega*vely impact performance,
•  cause injuries such as carpal tunnel syndrome, and
•  lead to unhappy, disgruntled workers.
–  Employees claim that monitoring is an inherent invasion of privacy
that violates their fundamental human right to privacy.
Balancing Interests
•  Perhaps the most effec*ve means to achieve monitoring
objec*ves while remaining sensi*ve to employee concerns
–  is to strive toward a balance that respects individual dignity while also
holding individuals accountable for their roles in the organiza*on.
–  A monitoring program developed according to the mission,
–  then implemented in a manner that remains accountable to the
impacted employees, approaches that balance.
Parameters for a Monitoring Policy
•  No monitoring in private •  Monitoring should only

areas (e.g. restrooms). aIain some business
•  Limit monitoring to within interest.
the workplace. •  Employer may only collect
•  Employees should have job-‐related informa*on.
access to informa*on •  There needs to be a
gathered during monitoring. disclosure agreement.
•  No secret monitoring – •  No discrimina*ng by
advance no*ce required. employers based on off-‐
work ac*vi*es.
Balancing Interests
•  Philosopher William Parent suggests we ask six ques*ons to
determine whether ac*ons are jus*fiable or have the
poten*al for an invasion of privacy or liberty.
–  For what purpose is the undocumented personal knowledge sought?
–  Is this purpose a legi*mate and important one?
–  Is the knowledge sought through invasion of privacy relevant to its
jus*fying purpose?
–  Is invasion of privacy the only or the least offensive means of
obtaining the knowledge?
–  What restric*ons or procedural restraints have been placed on the
privacy-‐invading techniques?
–  How will the personal knowledge be protected once it has been
acquired?
Regula*on of Off-‐Work Acts
•  Regula*on of off-‐work ac*vi*es is an interes*ng issue,
–  par*cularly in at-‐will environments.
•  Even at-‐will employers must comply with a variety of state

statutes.
–  Most businesses cannot discriminate against smokers but some
companies encourage employees to quit.
–  Two states and six ci*es ban discrimina*on on the basis of weight.
–  Laws protec*ng against discrimina*on based on marital status exist in
just under half the states.
•  Not necessarily protected against ac*on based on who they married.
–  A majority of states protect against discrimina*on on the basis of
poli*cal involvement, which vary on the type and extent of protec*on.
Regula*on of Off-‐Work Acts
•  Most statutes provide for •  The ques*on of monitoring
employer defense for rules employee online
that communica*on while off
–  are reasonably and ra*onally work is relevant to
related to the employment technology monitoring.
ac*vi*es of a par*cular –  No legal guidance.
employee;
–  Demands sensi*ve ethical
–  cons*tute a “bona fide decision making.
occupa*onal requirement,”
•  meaning a rule that is reasonably •  Is it ethical to seek out online
related to that par*cular informa*on prohibited from
posi*on; or a job interview, such as
–  are necessary to avoid a conflict religion?
of interest or the appearance of
–  Laws vary by country and state.
conflict of interest.
Privacy Rights since September 11, 2001
•  9/11 had a major impact on privacy within the U.S. and on the
employment environment in par*cular.
•  The most public and publicized modifica*on was the adop*on
and implementa*on of the Uni*ng and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT) Act of 2001.
–  Expanded states rights with regard to Internet surveillance, including
workplace surveillance, and amended the Electronic Communica*on
Privacy Act.
–  Grants access to sensi*ve data with only a court order rather than a
warrant and imposes criminal penal*es for aiding terrorists.
–  New disclosure clauses allow increased sharing of informa*on
between government agencies to increase protec*on.
•  Title II of the PATRIOT Act –  Broadens the types of
provides: electronic communica*ons
records that law enforcement
–  Expanded authority to may obtain.
intercept wire, oral, and
electronic communica*ons –  Permits emergency disclosure
of electronic communica*ons
related to terrorism,
to protect life and limb.
computer fraud, and abuse
offenses. –  Provides na*onwide service
–  Provides roving surveillance of search warrants for
electronic evidence.
authority to track individuals.
–  Allows na*onwide seizure of •  These provisions allow the
voice-‐mail messages pursuant government to monitor
to warrants – no wiretap anyone on the Internet by
order needed. contending it is “relevant”
to a criminal inves*ga*on.
•  The PATRIOT Act combats money laundering ac*vity.
–  Financial ins*tu*ons must now report suspicious ac*vi*es and keep
record of foreign na*onal employees.
•  The PATRIOT Act has been reauthorized three *mes.

–  Elements have been amended, revised, and extended by several
addi*onal bills.
•  The PATRIOT Act allows for and relies on requests from
businesses to gather informa*on.
–  However, it was revealed that the Na*onal Security Agency (NSA) was
harves*ng contact lists, searching e-‐mail content, and tracking and
mapping cell phone loca*ons.
–  Many organiza*ons now no*fy users of requests for informa*on prior
to disclosure unless prohibited by statute or court order.
Table 7.1
Monitoring of telephone calls is permiIed in connec*on with quality
control. No*ce to the par*es on the call is oHen required by state law,
though federal law allows employers to monitor work calls without
no*ce. If the employer realizes the call is personal, monitoring must
cease immediately.
Monitoring of e-‐mail messages is permiIed under most
circumstances. Even in situa*ons where the employer claims that it
will not, it's right to monitor has been upheld. However, where the
employee's reasonable expecta*on of privacy is increased -‐ such as a
password-‐protected account -‐ may impact the court's decision.
Though not yet completely seIled, the law on voice-‐mail system
messages appears to be similar to the analysis of e-‐mail messages.
When it comes to Internet use, where the employer has provided the
equipment and, or, access to the Internet, the employer may track,
block, or review Internet use.
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Table 7.2
Under the EU Privacy Shield:
When using Europeans’ data, U.S. intelligence services will have to
adhere to the new limits and oversight mechanism.
The U.S. State Department will have to employ a new watchdog to
handle complaints about intelligence-‐related maIers.
Companies must self-‐cer*fy compliance with the Privacy Shield and its
stated principles. Cer*fica*ons must be renewed annually.
Companies must publicly display their privacy policies that show
compliance with EU law.
Companies will have to resolve complaints within 45 days of being
filed.
Companies will have to update their privacy policies to explain how
people can access these services.
Companies will face more restric*ons on being able to forward
Europeans’ personal data to other companies.
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ETHICAL

Template Pela*han PPM Manajemen

This “telephone” has too many shortcomings to

• Privacy is a surprisingly Privacy rights

• Privacy is important as it establishes the boundary between

– Property rights means determining who maintains control over

Jump to descrip*on of image.

Insert Photo Credit Here

• Only two states require employers to no*fy workers when

Jump to image descrip*on.

People have really goIen comfortable not

• The lack of legisla*on means workplace disputes become a

• Addi*onal li*ga*on arose over Google’s replacement privacy policy.

– By failing to fully comprehend and plan for its stakeholders’

• The receiver of the – Accountability.

• A 2015 survey found that 21% of employers use e-­‐mail

• Internet use monitoring is evolving as social media grows.

• Ethical issues are compounded by a knowledge gap exis*ng

• Technology allows for access • Technology results in more

• Allows managers to ensure eﬀec*ve performance by preven*ng

• A 2014 poll found that of 1,000 HR professionals,

• One area sure to provide • GINA does provide for

Things do not change; we change.

– Monitoring may constrain eﬀec*ve performance since it can

• No monitoring in private • Monitoring should only

• Even at-­‐will employers must comply with a variety of state

• The PATRIOT Act has been reauthorized three *mes.

Jump back to original image.

Potrebbero piacerti anche

•  Privacy is a surprisingly Privacy rights

•  Privacy is important as it establishes the boundary between

–  Property rights means determining who maintains control over

•  Only two states require employers to no*fy workers when

•  The lack of legisla*on means workplace disputes become a

•  Addional liga*on arose over Google’s replacement privacy policy.

–  By failing to fully comprehend and plan for its stakeholders’

•  The receiver of the –  Accountability.

•  A 2015 survey found that 21% of employers use e-‐mail

•  Internet use monitoring is evolving as social media grows.

•  Ethical issues are compounded by a knowledge gap exis*ng

•  Technology allows for access •  Technology results in more

•  Allows managers to ensure eﬀecve performance by prevenng

•  A 2014 poll found that of 1,000 HR professionals,

•  One area sure to provide •  GINA does provide for

–  Monitoring may constrain eﬀec*ve performance since it can

•  No monitoring in private •  Monitoring should only

•  Even at-‐will employers must comply with a variety of state

•  The PATRIOT Act has been reauthorized three *mes.