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Workplace Privacy Challenges

Jessica Finnegan, MJ-LEL, Capstone Fall 2022

In the Fall 2022, my Capstone paper focused on workplace privacy challenges in the post-pandemic, 21st Century, especially with an increase in the remote workforce and the advancement of technology. Part I provides both a brief history, as well as the definition of privacy in the workplace. Part II elaborates on the stakeholder privacy angles of both the employee issues and the employer concerns. Part III specifies technological advancements, and the different legal protections that are currently in place. [The MJ-LEL program has a special course on Privacy, and this paper builds on that.]

There is a plethora of changes to the “norm” as known by the working world during and after the COVID-19 pandemic, and privacy in the workplace is considered an extremely controversial topic in the U.S. workplace that seemingly affects a large portion of the population. As crazy as it seems, it wasn’t that long ago when flexible and remote work was considered a massive job perk! Human Resource talent acquisition professionals were able to use this as the carrot to recruit and hire hard-to-get specialty roles. Some companies offered occasional days off to entice top talent and improve employee satisfaction. But individuals who worked at home full-time were typically freelancers and consultants.

Now moving into the latter half of 2022, working from home is a widespread phenomenon that’s upending the old school concept of work. A year into the pandemic, nearly 60% of the American workforce was working at least part of the week remotely; 41% were fully remote. It’s a striking number compared to the 17% of U.S. employees who worked from home five days or more per week before the pandemic. With many employees saying they want to make remote work permanent, the issue of remote worker privacy rights has become a key legal consideration. More specifically, employers and employees must both understand what specific privacy laws apply to each side of the equation.

Another factor is both the powerful new technologies that continue to emerge, and the increased use of that specific technology in the workplace, has also created new concerns for both employers and employees in the subject of privacy. While this technology is celebrated for the ways in which it has helped the world advance and individual businesses or industries grow, it also raises concerns that previously did not exist. As technologies change and progress, the law of workplace privacy is expected to change and transform as well. As an example, the development of new and sophisticated ways of monitoring and tracking employee activity may force lawmakers to act on privacy issues that are exploding all over the media, as well as taking center stage in the courts.

As more and more employees become permanent telecommuters, the lawmakers must address the question of whether the rules for the workplace are extended to the home. Even employees who do not officially work from home are spending more of their time outside the workplace connected to work via laptops, cell phones, tablet computers, remote access to e-mail, and other communication devices and systems. This phenomenon, which one reporter calls “the boundary-less workplace” raises privacy questions that the courts will soon have to address.

MJ-LEL Capstone © 2022 by Jessica Finnegan is licensed under CC BY 4.0

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