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THROUGH THE KEYHOLE

PRIVACY IN THE WORKPLACE:

AN ENDANGERED RIGHT

RESOURCE GUIDE

Hidden Surveillance

"It's a very personal thing when

you're in the locker room. I just

felt like my privacy was totally

invaded. It was very humiliating."

--Brad Fair

Drug Testing

"They took me into an examination

room and said, strip.' And I said,

what?' Drug testing is a moral

violation, an invasion of self,

control that an employer should not

have."

--Collette Clark

Lifestyle Discrimination

"What I do on my own time is my

private right. I went to work

everyday and I gave them 110%. I

never did anything wrong."

-- Dan Winn

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PROTECTING THE RIGHT TO PRIVACY IN THE WORKPLACE

Many of the basic rights we all take for granted are not protected

when we go to work. In fact, the ACLU receives more complaints

about workplace rights violations than about any other issue. The

12-minute video Through the Keyhole sheds some light on one

particularly important issue: the right to employee privacy, and

how it is violated by employers through hidden surveillance,

unwarranted drug testing and "lifestyle discrimination."

These abuses occur because there are so few laws that protect

workers' privacy rights. But you can help change that by

supporting the Campaign for Fairness in the Workplace:

* Call the ACLU's Campaign for Fairness in the Workplace at

1-800-775-ACLU.

We will send you ACLU publications on workplace privacy,

sample letters to editors and legislators and more

information on how you can help

* Show the video to your friends, family and co-workers

Feel free to make copies and share the video with others

* Write, fax or e-mail your state elected officials

Ask where they stand on the issues of drug testing, hidden

monitoring and lifestyle discrimination by private employers.

Urge them to introduce or support workplace privacy bills in

the state legislature

* Contact your local media

Write a letter to your local newspaper about the need to

protect privacy at work

* Volunteer with your state ACLU

If you would like to do more, call your state ACLU (we're

listed in the phone book)

Many civil liberties victories have been won with the help of

people like you. If you believe the right to privacy should be

respected at work, you can help it happen. With the right balance

of persuasion and action, we won't have to check our civil

liberties at the company gate or office door.

&emdash; The ACLU Task Force for Civil Liberties in the Workplace

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YOUR RIGHTS STRIPPED

Back in 1928, Supreme Court Justice Louis Brandeis wrote that the

right most valued by the American people was "the right to be left

alone." Private businesses, particularly those whose employees are

not unionized, are not limited by the Constitution and the Bill of

Rights which address only state action. They are free to violate

employee privacy &emdash; and not leave you alone at all.

There are many ways privately owned businesses can strip their

employees of their privacy rights:

American businesses routinely monitor the telephone calls of an

estimated one million employees every year. Although monitoring is

done "in the course of business," employers don't have to warn

workers, and they can listen in for up to five minutes in some

instances to determine if the call is a work-related call or not.

Secret telephone monitoring invades the privacy of both the worker

and the other person on the line.

Brad Fair's story shows how humiliating hidden video surveillance

can be. Many other employees are also monitored through their

audio headsets, so that supervisors can hear every word exchanged

during the course of a transaction &emdash; as well as "off the

cuff" remarks employees make to each other, or even to themselves.

Many employees are subjected to intrusive physical searches of

their person, office or possessions in the workplace. Companies

usually claim to do this on a random basis to deter theft.

Increasingly, some companies use imposter employees as spies to

keep their eye on workers.

An estimated two million employees every year are required to take

written personality tests that probe into the most intimate

aspects of their lives including hygiene habits, sexuality and

family relationships.

Drug testing and lifestyle discrimination, as experienced by

Collette Clark, Dan Winn and many other employees, are other ways

companies can pry into the personal lives of their employees.

Only a small percentage of the American workforce is protected

from these serious invasions of privacy. Federal, state and local

government employees, and contract workers (senior executives,

academics, performers, athletes and a few others) benefit from

some degree of legal protection. Many labor unions have fought

hard to protect their members' privacy rights in collective

bargaining agreements &emdash; but less than 20% of the American

workforce is unionized. A few states have enacted limited laws

protecting privacy in the private sector. But the vast majority of

Americans do not enjoy civil liberties protection at work.

WORKPLACE PRIVACY DENIED

Brad Fair, who worked for a Boston-area hotel restaurant, was

shocked to discover that his employer had installed hidden cameras

in the men's locker room, videotaping employees as they dressed

and undressed before and after their shifts. Management claimed

they suspected that employees were using and selling drugs, but

nothing illegal was ever discovered.

Although Brad did find a new job, he remained angry about the

hidden cameras. "It's not a problem to have cameras in the hotel,

but if you hide the camera that means you don't want people to

know what you are doing. It was very sneaky. I can't imagine

anyone having a good feeling about working for an employer that is

spying on them."

Instead of the promotion Collette Clark was hoping for at the

Southern California utilities company where she worked for years,

she got a pink slip after testing false-positive for marijuana.

Although her employer agreed the test results were inaccurate,

company policy dictated employees testing positive for drugs had

to be dismissed. With assistance from the local ACLU, Collette got

her job back &emdash; along with an apology from her employer.

Collette now says she will never submit to mandatory workplace

drug testing again. "If my qualifications are not good enough, if

my okay is not enough, if you can't believe me...no. Job

performance should speak for itself."

Dan Winn worked at a Midwest factory for six years when he was

abruptly dismissed. Dan Winn was observed drinking a beer with his

supervisor one evening after work. Although company policy

prohibited alcohol use by its employees at any time, only Dan was

fired; his supervisor was not.

Dan believes the lifestyle policy firing was a mere pretext for

punishing his labor organizing at the non-unionized factory.

Nevertheless, he considers lifestyle discrimination to be

detrimental and bad for morale. "You are constantly afraid

somebody is looking over your shoulder into your personal life.

That puts a lot of pressure on an employee. I guess it could cause

a productivity drop."

What happened to Brad, Collette and Dan is still happening all

over the country.

It's time to put a stop to these unfair practices.

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WORKPLACE DRUG TESTING ON THE RISE

Increase in Percentage of Large U.S. Companies That Test Their

Employees for Drugs

1987: 21%

--------------

1989: 48%

--------------------------------

1991: 63%

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1995: 77%

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Source: American Management Association

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THREE MODEL STATUTES FOR WORKPLACE PRIVACY

Here are the highlights of model state laws protecting employee

privacy drafted by the ACLU. Please urge your state legislators to

introduce, sponsor or support these laws.

Model Statute on Drug Testing

* Employers must notify employees and applicants of drug

testing policies

* Employers may only conduct drug tests when there is

"reasonable suspicion" of alcohol/drug abuse; no universal or

random testing is permitted

* No individual will be observed while providing a urine sample

* All test laboratories must be certified by the Alcohol Drug

Abuse and Mental Health Administration

* Employees have the right to a hearing to contest the accuracy

and/or ramifications of the test

* Employers must provide employees with rehabilitation and

treatment information and opportunities

* All test results are confidential and cannot be released

without the written consent of the employee

* An aggrieved employee has the right to introduce civil

damages action in court

* Anyone knowingly violating the law may be guilty of

misdemeanor

Model Statute on Electronic Monitoring

* Employers must notify employees and applicants of electronic

monitoring policies

* Prior to monitoring, employers must provide a visual or aural

signal to employees and any customers

* Employers must provide employee access to all data obtained

by electronic monitoring

* Employees have the right to a grievance procedure to dispute

inaccurate or misleading data

* Employers are prohibited from using electronic monitoring to

obtain data that is not relevant to work performance

* Areas subject to monitoring are restricted and cannot include

rest rooms, locker rooms and lounges

* All data collected is to be of limited use and cannot be used

for an employee evaluation or to introduce disciplinary

actions against an employee

* Employers are prohibited from disclosing personal data

without prior employee consent

Lifestyle Discrimination

* Employers cannot discriminate against employees or applicants

on the basis of their conduct during non-working hours and

off workplace premises (including smoking, dietary and

leisure activities) unless the conduct affects employee's

ability to fulfill work responsibilities

* Employers cannot collect information about an employee's

off-duty behavior

* Employees have the right to a grievance procedure to dispute

discrimination based on off-duty behavior

Full copies of the model statutes can be obtained by contacting

the Task Force for Civil Liberties in the Workplace at (212)

944-9800, Ext. 418

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RESOURCES

Here are some recommended resources that provide more information

on the issue of workplace privacy.

Ellen Alderman and Caroline Kennedy, The Right to

Privacy, New York: Alfred A. Knopf, 1995

Congressional Office of Technological Assessment, The

Electronic Supervisor: New Technologies New Tensions,

1987

Evan Hendricks, Trudy Hayden, and Jack D. Novik, Your

Right to Privacy: An American Civil Liberties Union

Handbook, Carbondale, Illinois: Southern Illinois

University Press, 1990

National Research Council Institute of Medicine,

Committee on Drug Use in the Workplace, Under the

Influence? Drugs and the American Workforce, Washington,

D.C.: National Academy of Sciences, 1994

"Whose Life is it Anyway? Employer Control of Off-Duty

Behavior," St. Louis University Public Law Review, Vol.

XIII, Number 2, 1994

9-to-5, Working Women Educational Fund, Stories of

Mistrust and Manipulation: The Electronic Monitoring of

the American Workforce, February 1990

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ABOUT the ACLU Task Force for Civil Liberties in the Workplace

Established by the ACLU in 1989 to address the need for civil

liberties protections in the workplace, The Task Force for Civil

Liberties in the Workplace's mission is to extend individual

rights to the private workplace through a national public

education campaign and a legislative strategy targeting state

legislatures.

The Task Force for Civil Liberties in the Workplace invites all

who believe civil liberties include the right to be free at work

to join in our efforts.

To receive more information about workplace privacy, please call

the ACLU Campaign for Fairness in the Workplace at 1-800-775-ACLU.

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