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C. Eugene Emery Jr.
By C. Eugene Emery Jr. February 17, 2013

Rep. Brian Patrick Kennedy suggests employers and schools are banned from monitoring workers in their cubicles and students in their dorm rooms

These days, it can be hard to figure out what is private and what is not.

At the same time people are concerned about the type of information collected by companies when they go on the Internet, people are also posting a lot of very personal information online via Facebook, Twitter and blogs.

State Rep. Brian Patrick Kennedy, a Democrat from Hopkinton, R.I., wants to put some limitations on how much private information you must reveal if you apply for a job or enroll in a school.

He is proposing legislation that would prohibit employers or schools from requesting social media information, including an applicant's personal username or password. For example, it would be illegal for an employer or education official to ask to be added to the applicant's Facebook friend's list.

It was this sentence in his news release that caught our eye, particularly the reference to employer rights: "Employers and schools have no more right to this private information than they do in providing surveillance of a dorm room or a worker's cubicle."

We were under the impression that employers had every right to keep an eye on you while on the job. If you use a company-owned computer on a company-owned network, for example, the company has the right to track every e-mail, every web-page visit, and even every keystroke you make on that machine.

So we decided to investigate.

We made two phone calls over two days to Kennedy asking him for his source. He never responded.

But if such monitoring is illegal, as Kennedy maintains, a lot of companies are already doing it.

We found a 2007 survey of 304 U.S. companies conducted by the American Management Association in which 7 percent said they use video surveillance to track employee's performance on the job.

But 48 percent reported that they use video monitoring to some degree to look for theft, violence and sabotage. Most of the time workers are informed of the surveillance, but not always.

Is it legal to monitor workers that way?

"In some workplaces, the answer is pretty clearly yes," said Michael Yelnosky, who specializes in labor law at Roger Williams University School of Law. In a private workplace with no union, placing a surveillance camera is no different from having a supervisor sit behind the worker and watching everything, he said.

"It might come out differently if there's a union in place," he said. "The employer would have to bargain that issue before he went ahead and unilaterally made that change" because it would be a change in working conditions.

The rules are a bit different if the employer is the government, he said. "The Supreme Court has said you have some protections in the workplace against your public employer that you wouldn't have from your private employer because the Constitution prohibits some state invasions of privacy where it doesn't say anything about private employers."

And there are other limitations. Rhode Island has an overall privacy law, passed in 1980, that protects against "unreasonable intrusion upon one's physical solitude or seclusion," the "appropriation of one's name or likeness," "unreasonable publicity given to one's private life," and publicity that "places another in a false light before the public."

There is also a state law that deals specifically with privacy in the workplace; it has special rules regarding areas of the workplace where people might expect an extra degree of privacy, such as a bathroom or locker room.

In general, video monitoring of workplaces is allowed, but there are restrictions if you want to add sound to that surveillance.

"You have to give your consent to personal conversations," said Robert Ellis Smith, publisher of Privacy Journal, a 38-year-old monthly publication. "If The [Providence] Journal were to install microphones in the city room, they can overhear business-related conversations. But once they turned personal, then the employer is not supposed to listen in. Rhode Island law pretty well tracks federal law [on this matter]. Courts have said employers have latitude to listen in on conversations, but they must be business related."

The Rhode Island Affiliate of the American Civil Liberties Union's pamphlet on "Your Rights to Workplace Privacy in Rhode Island," agrees that in most private workplaces, video surveillance is legal. But it is not legal if it's done to monitor employee activities related to the exercise of collective bargaining rights or the forming of a labor union.

While Rhode Island may not have a specific law about monitoring a cubicle or dorm room, said Steven Brown of the ACLU, the state’s general "right to privacy" law would apply.

Smith, of Privacy Journal, also said there is no ban on monitoring in dormitory rooms.

"They're the landlord," he said.

Installing a camera might be permissible, said Smith, however, "there could be a lawsuit if it picked up nudity, near-nudity, and sensitive areas but there's no law on it either way. It goes to the content of what's being picked up and how sensitive it is."

Audio surveillance in a dorm room would not be allowed without permission. "It's only employers who have that latitude," said Smith.

We also checked with Brown University, where spokesman Mark Nickel said the university's lawyers are "not aware of any legislation that either permits or forbids surveillance in dorm rooms. As a matter of well-established practice, Brown does not allow surveillance in private areas like dormitory rooms, and the general counsel's office is unaware of any college or university that does."

Our ruling

State Rep. Brian Patrick Kennedy said: "Employers and schools have no more right to this private [social media] information than they do in providing surveillance of a dorm room or a worker's cubicle."

Kennedy didn’t return our phone calls seeking backup for his claim.

One could read his statement two ways. In one reading, Kennedy could be giving an opinion that employers shouldn’t have rights to that type of surveillance. PolitiFact doesn’t rule on opinions.

But in our reading of his news release, Kennedy is asserting a fact -- that employers and schools don’t have such rights.

From that standpoint, it is clear that state and federal law does not prohibit schools and employers -- with some important restrictions -- from monitoring workers and students on their property, although we can't imagine anyone, other than students wanting to be in some sort of reality TV series, being willing to move into a dorm where school officials can watch you in your room.

Kennedy’s statement has some element of fact -- there are existing protections in the law. But it ignores important facts that would give a different impression -- the right of employers and landlords to monitor workplaces and living spaces. We rate his claim Mostly False.

(If you have a claim you’d like PolitiFact Rhode Island to check, e-mail us at [email protected]. And follow us on Twitter: @politifactri.)

Featured Fact-check

Our Sources

RILIN.state.RI.US, "H 5255 - An Act Relating to Education and Labor - Social Media Privacy," and "Rep. Kennedy proposes social media privacy act," both accessed Feb. 6, 2013,  "9-1-28.1  Right to privacy – Action for deprivation of right," Rhode Island General Laws, accessed Feb. 12, 2013., "2007 Electronic Monitoring & Surveillance Survey," American Management Association, Feb. 28, 2008, accessed Feb. 7, 2013

Interview and e-mail, Michael Yelnosky, professor, Roger Williams University School of Law, Feb. 7, 2013

Interview, Robert Ellis Smith, publisher, Privacy Journal, Feb. 11, 2013, "Your Rights to Workplace Privacy in Rhode Island," Rhode Island Affiliate, American Civil Liberties Union, accessed Feb. 11, 2013

E-mail, Steven Brown, executive director, Rhode Island Affiliate, American Civil Liberties Union, Feb. 11, 2013

Interview, Paul Stephens, director of policy and advocacy, Privacy Rights Clearinghouse, Feb. 11, 2013, "Fact Sheet 7: Workplace Privacy and Employee Monitoring," January 2013, accessed Feb. 11, 2013

E-mail, Mark Nickel, senior editor, media relations, Brown University, Feb. 13, 2013

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Rep. Brian Patrick Kennedy suggests employers and schools are banned from monitoring workers in their cubicles and students in their dorm rooms

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