Professor, Vanderbilt University; author, Speechless: The Erosion of Free Expression in the American Workplace.
CEO, eTelemetry, whose hardware and software lets companies monitor employees’ email and Internet usage
Is freedom of speech unconditional? What happens when employers attempt to limit that freedom?
Barry: Americans cherish free speech as a birthright. Employers cherish the freedom to manage their workforce as they please. I’m concerned about what happens when the two collide. Pressures to protect brands, cope with uncertain markets, and maximize financial results lead many firms to be reflexively suspicious of otherwise harmless worker speech.
Sfakiyanudis: As an employer, it comes down to time and place. Employers recognize that the demand on an employee to put in more time at the office requires them to be more flexible with regard to Web browsing, online shopping, and communicating via instant messages. However, when an employee takes advantage of this flexibility, the entire enterprise suffers.
Barry: The moderation you articulate masks difficult choices. If the only issues were recreational browsing and online shopping, it would be easy to strike a middle ground. But the hard problems involve political and religious speech, community activism, and professional identity. Many employers are too quick to worry that expressive activity by employees might affect the firm’s image. They shouldn’t be able to compel workers to forfeit the freedom to associate and to communicate freely as a condition of job security.
Sfakiyanudis: You imply that it should be acceptable for an employee to post to a blog from the corporate network, or to send an email exercising their freedom of speech. But those postings and emails can be traced back to the company, and it could be misinterpreted that the employee’s position is endorsed by the employer. This creates a huge potential liability.
Barry: There is a difference between prudent caution to avert liability and zealous vigilance that tramples rights. Implementing proper controls to cope with increased scrutiny sounds reasonable, but can we trust employers to grasp the meaning of “proper” and “reasonable”?
Sfakiyanudis: An employer doesn’t necessarily need to be trusted to grasp the meaning of “proper” and “reasonable,” since the line is theirs to draw. Rather, each company has its own culture and values that define a view of acceptable behavior. Where most companies stumble is by not articulating their policy.
Barry: Your company sells products intended, in part, to help employers keep tabs on their employees. To find violations of acceptable use, though, one has to monitor nonviolations. To discover if an employee is shopping online, you have to monitor his online reading. And routine monitoring of all communications, no matter how well intentioned, is from a moral perspective an invasion of privacy.
Sfakiyanudis: To know that an employee is shopping while at work, one only needs to know that they are visiting an online retailer. It may be against your “moral perspective” to monitor use of a corporate asset, but case law dictates that employers take responsibility for actions of employees while on the corporate network.