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Full Text: Open Debate

Should your boss be able to limit your freedom of speech?

Bruce Barry

Professor, Vanderbilt University; author, Speechless: The Erosion of Free Expression in the American Workplace.

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Ermis Sfakiyanudis

CEO, eTelemetry, whose hardware and software lets companies monitor employees’ email and Internet usage

Is freedom of expression unconditional? What happens when employers attempt to limit that freedom in the workplace?

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 these two freedoms collide. Most employers don’t think of themselves as a threat to freedom of expression, much less to the health of democracy, when they make personnel decisions. But that’s what’s at stake when employers punish workers for expressing themselves on and off the job. I won’t argue that a workplace should be a free-speech zone where anything goes, but I am troubled by a legal system that gives employers such broad discretion to suppress workers’ expressive activity, both at work and after work, with impunity. Relentless pressures to protect brands, cope with uncertain markets, and maximize financial results lead many firms to be reflexively suspicious of otherwise harmless worker speech. And it takes just one employee canned for blogging or politics or community activism to chill everyone else into defensive silence. Some would say gee, that’s a shame, but work is work, so do your free speech on your own time. I say that work is where many adults develop the ties that build and bind communities. Free speech rights at work therefore matter for advancing citizenship in a free society.

Sfakiyanudis: As a naturalized citizen, I also love to stand on top of democracy mountain waving the free speech flag. As an employer though, it comes down to time and place. For most companies, mine included, payroll is the largest recurring expense. In today’s world, employers recognize that the demand on an employee to put in more time at the office and to spend more of their life behind the corporate walls requires them to be a bit more flexible with regard to web browsing, online shopping, and communicating with friends and coworkers via instant message systems. However, when an employee takes advantage of this flexibility and exceeds an acceptable use threshold on company time, the entire enterprise suffers. Building ties with coworkers and limiting personal activities during work hours do not have to be mutually exclusive.

Barry: Ermis, you articulate what feels on the surface like moderation: employers ought to be flexible in controlling employee communication, while employees should respect reasonable limits on personal activities during work hours or expect consequences. But this seemingly sensible balance masks difficult choices – and potential hazards for employee rights – at the margins. If the only issues were recreational browsing and online shopping, then it wouldn’t be all that hard to strike a reasonable middle ground, and many smart employers are already doing that, no question. But the hard problems involve political and religious speech, community activism, and professional identity, not online shopping. Many employers are too quick to become apprehensive that expressive activity by employees might affect a firm’s image or success. Certainly employers have the right to worry about these things, and to act when workers abuse company resources. Employers should not, however, be able to compel workers to forfeit the freedom to associate and to communicate freely about their professional or political lives as a condition of job security.

Sfakiyanudis: I agree with you that the right to express one’s political and religious views outside of the workplace is the right of all Americans. But your position that employers are “too quick” to react to employee expression minimizes the pressure on employers to meet today’s compliance and regulatory standards. Your statements imply that it should be acceptable for an employee to post to a blog from the corporate network expressing a personal position, or to send an email from the company network exercising their freedom of speech. The problem with that in today’s world is that all 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 liability for the company. I think corporate image or the success of the firm have far less to do with establishing corporate policy on acceptable forms of communication and far more to do with the increased scrutiny and liability that employers face by not implementing the proper controls.

Barry: The possibility that an employee’s speech might be misconstrued as a company-endorsed viewpoint is a legitimate concern, and certainly there are situations where employers are justified in their efforts to keep the two separate. Many employees, for instance, appropriately caution employees that political campaign activity must not be tied to the company lest they expose the firm to potential violations of campaign finance laws. But as with other forms of speech we’ve been discussing, there is a difference between prudent caution to avert liability and zealous vigilance that tramples employee expressive rights. Consider, for example, this caution to workers in a major retail chain’s code of conduct: “You can enhance or hurt the company’s image with every written, verbal, or electronic communication.” Or this from a big health care company: “In the conduct of their personal, civic, and political affairs, employees should at all times make clear that their views, actions, gifts, and contributions are their own and are not those of” the company. The first imposes an implicit gag order by suggesting that any and every employee utterance on or off the job could land you in trouble. The second is a form of compelled speech, mandating unnecessary disclosures and implying with not much subtlety that if your speech is linked to us, expect to pay a price. Given that people who make news in their communities are routinely identified by occupation in press reports, this imposes a non-trivial potential chill on off-work civic engagement. Implementing “proper controls” to cope with “increased scrutiny and liability” sounds reasonable, but can we trust employers to grasp the meaning “proper” and “reasonable”?

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Sfakiyanudis: There is no doubt that drawing the line for acceptable expression in a corporate environment is neither easy nor a one time event. Much in the way that each State has its own moral barometer by which their constituency measures the validity of their laws, each company has its own culture and values that define their view of acceptable behavior. Where most companies stumble is by not clearly articulating their policy. By having a clear policy employees not only know what is expected, they have the opportunity to respond with concerns. An employer doesn’t necessarily need to be trusted to grasp the aforementioned concepts, since the line is theirs to draw. Where we do put trust in our employers is that once they have defined acceptable use, they will keep the lines of communication open with their employees to continue to refine a policy that is reflective of the culture of the company.

Barry: You say that we should trust employers, once sound policies are in place, to “keep the lines of communication open with their employees” in the service of further policy refinements. I’m always in favor of keeping lines of communication open. But your company sells products intended, in part, to help employers keep tabs on their employees, yes? An article that appears on your firm’s website refers to one of your products as something that “tracks down network slackers and miscreants” in a way that keeps employees “unaware that Big Brother is watching.” I don’t quarrel with companies’ desire to monitor their networks in order to wisely manage resources and control costs. But touting those network tools as an efficient version of “Big Brother” strikes me as philosophically inconsistent with the notion of open communication. My point here is not to assail the product in question, but rather to ask how you think the employers who buy your product should balance the need (and one hopes the desire) to respect employee rights with the impulse to surveil?

Sfakiyanudis: The line you quote from the website is from an article by a trade publication, not something the company “touts” as a feature. The product referenced in that article sits on a corporate network and passively monitors network traffic in order to quantify the bandwidth usage, time spent surfing, and time spent instant messaging by an employee on a corporate network. The system also keeps track of the websites visited by each employee and keeps a historic record of this information. Our products do not give an employer the ability to impede an employee’s privacy. Instead, it gives an employer a way to quantify time spent surfing and where the employee surfed in order to assist resource allocation and policy enforcement. In my experience most employees, managers included, know which of their co-workers spends the day instant messaging and posting to blogs instead of contributing to the productivity of the company. With our systems in place, an employer can verify with certainty who is violating acceptable use policy instead of doing so based on suspicion alone.

Barry: The problem for me is that to find violations of acceptable use, one has to monitor non-violations. To find out if an employee is using the telephone to call her bookie, you have to listen in on her conversation with her physician. To discover if an employee is shopping online, you have to monitor his online reading. Enlightened employers refrain from intrusion into their employees’ private affairs, even those affairs that involve communication using firm resources, unless and until there is some grounds for concrete suspicion of bad behavior. Routine monitoring of all communications, no matter how well intentioned, is from a moral perspective an invasion of privacy (even though employment law in the U.S. allows it). And by the way, I realized full well that the provocative line I quoted about your product came from an article in a trade publication. But it is disingenuous to say “this is not something the company touts as a feature” since the company chooses to present that article, including its headline about Big Brother, on its own web site under “Solutions.”

Sfakiyanudis: I disagree. Not all forms of monitoring are nefarious as your comments imply. To know that an employee is shopping while at work, one only needs to know that they are visiting an online retailer. Our systems don’t report on the content of employee communications. Our systems document sites visited and the amount of time spent there in addition to the amount of bandwidth used. Even “enlightened” employers would welcome the ability to quantify their suspicions and to have documentation for any necessary action. It may be against your “moral perspective” to monitor use of a corporate asset, but case law dictates that employers take responsibility for the actions of their employees while on the corporate network. Would you have an employer turn a blind eye to an employee surfing pornography for 7 hours of their work day? How would that affect the morale of the their coworkers carrying the full workload while waiting for the employer to develop some “concrete suspicion of bad behavior?” As to the article on our website, it is a positive product review by a well respected trade publication. The term “Big Brother” is used very liberally these days to describe any technology that monitors any activity, including websites visited.

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