Menor, Edward: Employees’ Privacy Issues viz Employer’s Access to Corporate Property and Facilities

SY 2008-2009, First Semester


INTRODUCTION

The technology boom has created tremendous opportunities for efficiency, especially in the workplace. Technology lessens the processes and procedures which a company would take in the ordinary course of doing such processes or procedures. It also helps companies to cope up with the industry developments and the competitiveness of the company. However, it is noteworthy that companies hire employees to do these processes and procedures for them. In this light, employers and employees enter into a contract of employment in order to delineate the duties and responsibilities of each party. Since the employee is working in the place of the employer, the latter always set up certain limitations to the freedom in using company-owned assets and facilities.

However, several problems may occur due to the Constitution-granted rights to both employee and employers. On the part of the employees is the right to privacy. The Constitution grants each and every person protection on the person’s privacy and sanctity.

On the other hand, the Constitution also grants persons, either natural or juridical, right to property. This means that the Constitution protects the property rights of an owner of a thing for him to enjoy all the fruits and for him to enhance his own life.

This paper aims to reconcile these two Constitutional grants to persons. It discusses whether or not there should be one right that is more superior than the other. It also discusses whether or not these rights may be properly invoked whenever there is a conflict between the interests of the employee and the interests of the employer. Eventually, a conclusion and recommendation will be arrived at in order to reconcile the two Constitutional rights of the respective parties.

PRIVACY RIGHTS OF A PERSON AS MANDATED BY THE CONSTITUTION

The 1987 Constitution expressly provided the right to privacy of Filipinos. This is enshrined in Article III Section 2, to wit:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

This provision of the Constitution protects the privacy and sanctity of the person himself. This is a guarantee granted by the Constitution to the persons against unreasonable searches and seizures, unlawful arrests and other forms of restraint of a person’s physical liberty.

Article III Section 3 of the Constitution further provides that:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

It is recognized worldwide that certain technological advances are a highly intrusive form of entering into the private life of persons that should only be used in limited and unusual circumstances. Nearly all major international agreements on human rights protect the right of individuals from unwarranted invasive technological developments.

The right to “privacy” can encompass a wide variety of concepts. Perhaps the most famous definition was expressed by Justice Louis D. Brandeis when he called the right to privacy the right to be let alone. In Olmstead v. United States, Brandeis foresaw how technological change impacted privacy rights. Brandeis noted in his dissent that when the Constitution was written, “force and violence” were the only means by which the government could invade a citizen’s privacy by literally breaking down the front door and entering the premises. By 1928 however, advances in technology (such as wire tapping) allowed for more surreptitious invasions of privacy. Brandeis warned that constitutional provisions against unwarranted search and seizure needed to be extended to meet the changes in surveillance technology. Brandeis’ technological predictions were accurate.[1]

INSTANCES WHEN THE RIGHT TO PRIVACY IS VIOLATED

The developments of technology, like sophisticated electronic surveillance, has been one of the questionable areas whether or not the right to privacy provision has been violated. The Philippine courts as well as the US and other courts in the world has recognized the right of a person to his privacy. The preceding discussion are some of the jurisprudence affecting the privacy of a person.

In the case of Vernonia School District vs. Acton [2], the Court acknowledged that compelled urinalysis was a form of search but that its reasonableness must be judged by balancing the intrusion on the individual’s interests against the promotion of legitimate government interests. Student athletes have a lesser privacy expectation that free adults because an element of communal undress is inherent in athletic participation and athletes are subject to preseason physical examinations. The privacy interests involved in the process of obtaining urine samples are negligible since the conditions of collection are almost identical with those found in public restrooms. Moreover, the tests looked only for standard drugs and not medical conditions, and the results would be released only to a selected group. The legitimate interest of the state in reducing the risk of physical harm to the athlete and to others outweighs the privacy interest of the student athlete.

In the case of People vs Andre Marti [3], the Supreme Court held that the constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcer, as warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

With the abovementioned cases of violations to right to privacy, it can be inferred that the violation on the right to privacy can only be invoked if there is unlawful intrusion by the government to the private life of the person. Therefore, if there be no government intervention, there can be no violation of the right to privacy. It being the case, if a person intrudes in to the private life of another person, the latter cannot claim as a defense that the person violated the privacy rights of the other.

PROPERTY RIGHTS OF A COMPANY TO SECURE ITS ASSETS/PROPERTIES AS MANDATED BY THE CONSTITUTION

While the employees have the right to life and right to privacy, employers have a right to property. The right to property entitles employers to conduct their business and to acquire profits from business transactions. Under Article III Section 1 of the 1987 Constitution, it provides that:

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

The reach of protection includes all persons; citizens or aliens, natural or corporate. [4] Protected property has been deemed to include vested rights such as a perfected mining claim, or a perfected homestead, or a final judgment.

With the wordings of the Constitution, it gives to property the same degree and quality of protection that it gives to life and liberty. Property is an important instrument for the preservation and enhancement of personal dignity. Property is more closely regulated not in order to oppress the owner but in order to impress upon him the social character of what he holds. Thus, it is that property must also enjoy the protection of the due process clause. To deny protection to property altogether is to invite both anarchy and tyranny. Property stands a good chance of serving and enhancing the life and liberty of all. It has a social dimension and that the right to property is weighted with a social obligation. [5]

Businesses are essentially free to monitor their employees in the workplace. The Electronic Communications Privacy Act of 1986 expressly gives private sector employers the right to monitor employee phone calls, e-mail messages, voice mail, computer files, and other communications made on company owned equipment in the ordinary course of business under the Act’s “business extension rule.” This exception would allow the interception of e-mail and other communications by an employer, provided certain qualifications are met. The employer would have to prove that it had established a monitoring policy and had made certain employees knew about it in advance of the interception, and that the interception was business related. [6]

From the discussion above, it is obvious that the employer or the company has been granted by the Constitution the right to property. The right to property has been given the same weight as with the right to life and liberty. Moreover, the employer has all the right to control and monitor the acts of its employees in any manner as long as it is within the policy of the company.

CONTRACT OF EMPLOYMENT OF A PERSON TO A COMPANY

Employment [7] is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: “A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.

A contract of employment [8] is a category of contract used in labour law to attribute right and responsibilities between parties to a bargain. On the one end stands an “employee” who is “employed” by an “employer”. It has arisen out of the old master-servant law, used before the 20th century. Put generally, the contract of employment denotes a relationship of economic dependence and social subordination. In the words of the influential labour lawyer Sir Otto Kahn-Freud,

“the relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the ‘contract of employment’. The main object of labour law has been, and I venture to say will always be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.”

In a Contract of Employment, the typical clause is that Employer hereby employs, engages and hires Employee and Employee hereby accepts and agrees to such hiring engagement and employment, subject to the general supervision and pursuant to the orders, advice, and direction of Employer.  Employee shall perform such other duties as are customarily performed by one holding such position in other, same or similar businesses or enterprise as that engaged in by Employer and shall additionally render such other and unrelated services and duties as may be assigned to him from time to time by Employer. Employee agrees that he will at all times faithfully, industriously, and to the best of his ability, experience and talents, perform all of the duties that may be required of him, pursuant to the express and implicit terms hereof and to the reasonable satisfaction of Employer. Such duties shall be rendered at the principal office of the Employer and at such other place or places as Employer shall in good faith require or as the interest, need, business, or opportunity of Employer shall require. [9]

Thus, both employer and the employee has their own duties and responsibilities with each other. These duties and responsibilities shall be rendered in the principal office or in the premises of the employer. Since the employee works for the company, it is imperative that the employer furnishes all the facilities, things and other needs of the employee in the course of its employment.

LIMITATIONS TO THE CONTRACT OF EMPLOYMENT, I.E., COMPANY POLICY

The rules and regulations of the company is envisioned in the Company Policies and Procedures. It lays down all the processes and procedures on every activity within the company. It also restricts some of the freedom of the employee especially in using company assets and other facilities. Like for example, the policy of the company that no employees will have any access to the internet. The company in this scenario would want that each and every time that the employee spends in the workplace would always be for the benefit of the employer.

Many employers introduce their personnel policy manuals or employee handbooks having the statements expressing intention of the management in creating a pleasant and productive work environment. S some organizations, on the other hand, emphasizes their commitment in providing quality products and customer service. And in the mission statement, it includes a reference to the employer’s ultimate intention in rewarding its employees for their contributions to the organization.

Certain employers provide in their policies several restrictions when it comes to the use of company-owned properties. Like for example in emails. Some of the common restrictions in emails are the following:

  1. Restriction of non-business use email to non-working time
  2. Blocking and filtering of email from unauthorized addresses
  3. Prohibition of mass or chain emails and/or prohibitions on solicitation for any outside organization or religious or political clause
  4. Restrictions and/or prohibitions on emails and/or attachments of certain file sizes
  5. Re: lines must be used to distinguish between personal and business emails
  6. Non-business emails must be sent by lowest delivery priority
  7. Prohibition or blocking of third parties from directly or indirectly accessing an employer-owned system.

Developing and enforcing a facially valid, non-discriminatory policy governing email usage may be an employer’s most valuable tool in protecting its electronic resources against virus, corruption, hacking, unauthorized use, spam, and all of the dangers that can come with unrestricted employee and the third party use of the employer’s system. [10]

Thus, the limitations that an employer imposed on its employees are not restrictive in a way that it violates the right of the employee to privacy. These limitations are imposed to guard and protect its properties in order to have a smooth and uninterrupted business activity.

COMPARISON OF THE TWO RIGHTS GRANTED BY THE CONSTITUTION

One of the fundamental rights of individuals is the right to privacy. This is a Constitution granted right which every individual is entitled. However, there is a limitation in invoking this right. Many individuals, especially the employees, who operate company-owned facilities, has a mistaken impression that they have a fundamental right to privacy in the workplace. While employees are protected from privacy invasions by the government under the Constitution, no such constitutional protection exists in the private sector. Businesses are essentially free to monitor their employees in the workplace. [11]

Private sector employees thus have few protections from employer monitoring. If an employer establishes policies regarding employee monitoring, they are legally obligated to abide by them. Additionally, an employee may be able to bring suit under the common law torts for invasion of privacy for an unreasonable or unwarranted invasion of the right to privacy. Thus, an employee may have a cause for action if the employer’s monitoring exceeds the bounds of decency, e.g. placing video cameras in the lavatories or dressing rooms. [12]

As elucidated above, individual’s right to privacy can only be invoked if there is an unlawful intrusion by the government to private individuals as enunciated in the case of People vs. Andre Marti. There is a fundamental element of government intervention before the right can be invoked. If on the other hand there is no government intrusion, as in the case of private intrusion, the right may not be invoked.

Based on the above discussion, the Constitution also grants another right to persons other than the right to privacy. This is the right to property. The right to property may be invoked by any persons, natural or juridical, if his property is in danger of being lost or destroyed. The right is absolutely given to the persons with the same level as the right to life and property.

However, it cannot be said that the right to property is more superior than the right to privacy. All these rights are granted by the Constitution and there may only be instances before these rights can be invoked. The right to privacy may be properly invoked if there is unlawful intrusion by the government. On the other hand, the right to property may be invoked anytime if there may be a danger of destruction of the person’s property. Thus, in this paper, since there is no unlawful government intrusion when the employer limits the freedom of the employee in the workplace, then the right to privacy of employees may not be violated by the employer.

CONCLUSION

The above discussion clearly laid down the requisites in order for the right to privacy and right to property may be invoked by the employee and the employer. The rights may be invoked on certain circumstances but not on others. As in the right to privacy, such right can only be invoked by the individual if the government unlawfully intruded his privacy. However, the right cannot be invoked if there is no government intrusion. In the case of employer-employee relationship, the government has no power to unlawfully interrupt such relationship unless provided for by law. Therefore, the right to privacy may not be invoked by the employee whenever the employer may have invaded its privacy without just cause. The employer may restrict the freedom of the employee in the workplace but this limitation does not amount to unlawful intrusion to the privacy of the employee. This is just a precautionary measure to lessen the risk of the loss and destruction of company properties and facilities. Moreover, as long as the employer has a policy with regards to such limitation, the employer has all the right to control and monitor the employee.


Endnotes

[1] http://www.catholicsocialscientists.org/Article–Kelly–Privacy.htm

[2] No. 94-590 Decided June 26, 1995

[3] G.R. No. 81561 January 18, 1991

[4] The 1987 Constitution of the Republic of the Philippines: A Commentary, by Joaquin G. Bernas, S.J., 2003 Edition

[5] Ibid.

[6] http://www.catholicsocialscientists.org/Article–Kelly–Privacy.htm

[7] http://en.wikipedia.org/wiki/Employment

[8] http://en.wikipedia.org/wiki/Employment_contract

[9] http://www.abogadomo.com/empcont.html

[10] http://www.winston.com/siteFiles/publications/NLRB_EMail_Bosley_Lom.pdf

[11] http://www.catholicsocialscientists.org/Article–Kelly–Privacy.htm

[12] Ibid.

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