On-line rights at work

This article by Andrew Bibby, in a slightly different form, was first published in the World of Work, 2001

Welcome to the electronic workplace. In a few short years, email and the internet have transformed business practice in many countries. Companies have found that they have fantastically powerful new tools available to them, both for communicating and for obtaining information.

But these changes have brought some difficulties, too. The speed of change has left employers, workers’ representatives and indeed individual workers struggling to know what sort of rules should govern the way these technologies are used at work. Is it acceptable, for example, for an employee to surf the internet at work for purposes which are not directly work-related? Is there a difference between visiting a website, say, on health and safety issues and simply catching up on the latest sports results?

And to what extent should employers be able to monitor their employees’ use of email and the internet? Is it acceptable, for example, for an employer to trawl through the emails sent by an individual worker to their trade union? Does it make a difference if employer monitoring is publicised rather than being covert?

In the early days of the internet, a certain laisser-faire approach to questions like these may have sufficed. In fact, some employers actively encouraged their workers to become familiar with the technology, taking the view that staff who surfed the Web for fun would end up better trained and more productive. Other companies who adopted an informal approach did so simply because they had not had time to work out a coherent management stance.

This is increasingly less of an option. For example, it is becoming clear that, in some circumstances, companies can be called to account for emails sent by their employees. Perhaps the highest profile example of the use of company emails was the US anti-trust hearing against Microsoft, when the US Justice Department made use of private messages sent by Microsoft chairman Bill Gates, as part of its case against the company. There have been other occasions when the texts of emails have become public knowledge — and companies have rued the fact that they were ever sent. One example was that of a US oil giant which lost a sexual harassment case and paid out $2.2m in damages to four women workers when internal emails were shown to reveal an aggressively male work-culture. In the United Kingdom, a large insurance company was obliged to pay £450,000 ($650,000) to a rival insurer after its staff were found to have sent libellous email messages about the other company.

Another concern for companies is that email addresses used at work usually include the company name, suggesting that email messages are in some sense official communications. This was a serious problem for one Swedish firm, when one of its employees used their work email address to send messages of support to an extreme right-wing organisation with nazi views.

Emails are also a conduit which can bring in computer viruses to internal corporate networks. The Melissa virus alone has been estimated to have cost North American businesses $80m. The ‘iloveyou’ virus went around the world in hours, infecting many large and small companies’ systems.

It is perhaps unsurprising, therefore, if employers are increasingly introducing policies on email and internet use and are engaging in monitoring the use which employees make of these technologies. The best evidence of this trend comes from the US, where the American Management Association (AMA) has been surveying this issue each year for the past four years. The AMA reports that the percentage of major US companies who store and review employees’ email messages increased from 27% in 1999 to 38% in 2000. As recently as 1997, only 15% of firms engaged in this practice.

It is a similar story with internet use. According to the AMA, an even larger number of US companies, about 54% in 2000, are now monitoring the internet connections made by their employees.

Coupled with these developments has been an increase in disciplinary action taken against employees who are deemed to have breached the rules. For example, the New York Times sacked 23 of its staff in November 1999 for emailing jokes and pornographic pictures. The following summer, the international investment bank Merrill Lynch sacked fifteen of its London employees who were also alleged to have circulated offensive material by email.

But moves like these can be controversial, particularly in the broader context of industrial relations in the workplace. The airline company Ansett sacked one of its employees, Maria Gencarelli, for what it called an ‘unacceptable use of technology’. Ms Gencarelli, a delegate of the Australian Services Union, had circulated to her colleagues via email an update on the bargaining talks being carried on between the company and the union. The case was referred up to the Australian Federal Court, who found in April 2000 in Ms Gencarelli’s favour. The airline, the court found, had contravened freedom of association provisions in the country’s Workplace Relations Act.

Trade unions have been engaging in the issues raised by cases such as these for a number of years. One of the first initiatives was that taken by the international trade union federation FIET (now part of Union Network International, UNI), which launched a campaign for On-line rights for On-line workers early in 1998. UNI has taken over the running of the campaign, and co-hosted an international conference on the key themes in Brussels at the end of last year.

UNI’s campaign identifies a number of separate, but interrelated, issues. Firstly it claims that there is an issue of freedom of association to be addressed. UNI argues that, in an increasingly electronic world of work, workers’ organisations should have access as of right to electronic means of communication to reach members and potential members, to engage in the normal process of industrial relations. As UNI’s General Secretary Philip Jennings puts it, "Trade unions appreciate the advantages which new communication technologies can bring, and know that in the electronic workplace the old ways of communicating with employees may no longer be the most appropriate."

The provision of facilities to workers’ representatives was an issue which the ILO addressed in 1971 in both Convention 135 and the accompanying Recommendation. The Recommendation talks of trade unions having the right, for example, to post notices and to distribute news-sheets and publications to workers. UNI argues that these rights should extend to electronic forms of communication, particularly as new working methods such as teleworking take an increasing number of people away from the centralised workplaces of the past. One of UNI’s On-line rights campaign demands is for trade unions, works councils and individual workers to have access to corporate email systems for industrial relations purposes. A second demand is for employees to have the right of free access to trade union websites, and other internet sites relevant to their rights at work.

These issues have been picked up by a number of trade union organisations in individual countries. In South Africa, for example, the trade union federation Cosatu adopted a declaration in August 1999 which committed the organisation "to specifically launch a campaign to ensure dedicated access for each shop steward to a computer, internet and email facilities at each workplace". A similar demand is now included in the Charter of Workplace Union Delegates Rights, adopted by the Australian Council of Trade Unions.

UNI’s campaign also highlights its concern about employer electronic monitoring of email and internet use. Philip Jennings warns against victimisation: "The opportunity for unscrupulous employers to monitor by electronic means those employees who use email, the internet or other on-line facilities to communicate with their trade union or representative organisation certainly exists. The risk of victimisation is a real one in some situations."

But UNI has also raised a more fundamental issue, the extend to which electronic surveillance and monitoring (‘snooping’, according to its critics) represents an unacceptable invasion of an individual’s right to privacy, and as such could be held to be against the Universal Declaration of Human Rights and other international human rights initiatives. Legal expert Professor Gillian Morris, one of the speakers at the recent Brussels conference, argued that whilst employers’ legitimate interests might mean some encroachment, in her opinion there should remain an ‘inviolable zone of privacy’ for employees which employers should not intrude within. There should be a heavy onus on employers to justify any encroachment of their employees’ privacy rights, she argued.

A number of countries are currently attempting to reconcile these issues, in the context of privacy laws. In the Netherlands, the Chamber of Registration (the Dutch body charged with privacy legislation) published advice in January which would allow employers the right to check employee emails and internet usage, provided that clear ground-rules have first been drawn up and made public. The German Ministry of Labour has announced its intention to proceed with an ‘employee data protection act’. In the UK, a draft Code of Practice being drawn up by the country’s Information Commissioner has been criticised by employers for being too tightly drawn.

A recent report from the French Commission nationale informatique et libertés (CNIL) suggests that a common-sense approach can help establish fair and effective email and internet usage policies in companies. CNIL proposes a relatively relaxed approach to employee use of email and the web, for instance, with private use permitted within reasonable limits, provided that it does not prevent the normal work use of these channels of communication. Banning all private emails would be an unrealistic step, it suggests.

CNIL says that companies should develop clear and detailed policies on security and monitoring, which should be made public to employees. Analysis of internet usage specifically by individual workers should not normally take place, expect in ‘exceptional circumstances’. CNIL adds that employers might legitimately forbid visits to certain types of website, such as pornographic or Holocaust-denial sites. The report can be found at http://www.cnil.fr/thematic/docs/entrep/cybersurveillance.pdf

Issues of access to electronic facilities and of electronic monitoring are also being tackled within the context of normal industrial relations. A number of unions, including GPA in Austria, FNV in the Netherlands and MSF in the UK, have produced Model agreements covering email and internet use. The FNV model, for example, proposes that employees should have the right to use email and the internet for non-commercial purposes "provided that this does not interfere with their day-to-day work commitments" (the right to deliberately visit pornographic or racist websites is specifically excluded, however.) In France the multimedia union Betor-Pub CFDT has negotiated a formal agreement with the Société OLSY, which gives the trade unions the right to use internal electronic means of communication to keep in touch with members.Despite these developments, the next few years could see even greater difficulties in establishing good practice in this area of employment relations and employment law. Technology is changing: employees will increasingly be able to send email and to search internet sites whilst away from their desks by using their mobile phones whilst at the same time their phones will potentially allow their employers at all times to monitor their exact geographical location. At the same time, new ways of working are developing, which are seeing the formerly rigid boundaries between work and personal life become more and more blurred. Fair and sensible procedures for employee use of electronic forms of communications seem likely to become even more essential in the years ahead.