Electronic Monitoring to Promote National Security Impacts Workplace Privacy

This paper explores electronic workplace monitoring in light of the USA PATRIOT Act—federal legislation with a national security focus that expands the likelihood of electronic workplace monitoring to assist government investigators. The paper examines federal laws that cover the privacy rights of at-will employees in the context of electronic workplace monitoring, including recent cases that have narrowed employee privacy rights. The paper argues that business justifications for electronic workplace monitoring have been bolstered by national security concerns, resulting in decreased expectations of privacy in the workplace for at-will employees. There are persuasive arguments that employers should exercise restraint in the use of information obtained through electronic monitoring in discipline and discharge decisions related to at-will employees. These arguments in favor of exercising restraint flow from the text of the USA PATRIOT Act and consider the risk of discrimination lawsuits.