Corporate Espionage: Spying on Your Own Employees

In a recent case, (Iskandar Salman v. Ihab Alimi) the Labor Court ruled that an accountant, who discovered that he was being filmed in his office by his employer and without his knowledge for the last 7 years, was, despite his resignation, entitled to severance pay.

The plaintiff claimed that after 11 years of working for the defendant, the last 7 of which occurred under surveillance, he no longer trusted his employer and the fact that his employer surreptitiously filmed him at work constituted a deterioration of the workplace environment such that his resignation should be considered the equivalent of a dismissal and he should thus be entitled to severance pay in respect of the years of service to the employer. The Severance Pay Law- 1963 states that "Where an employee resigns by reasons of an appreciable deterioration of his conditions of employment, or in view of other matters of labor relations affecting him and because of which he cannot be expected to continue in his employment, the resignation shall, for the purposes of this Law, be deemed to be dismissal."

The plaintiff also sued for emotional distress caused by the invasion of privacy. (In case you are curious, the plaintiff learned of the existence of the camera after the employer returned from his vacation, viewed tapes of the other employees not performing their assigned tasks properly- whatever that means- and called them into his office to reprimand them. It was then that the secret filming was revealed. The employer claimed this was the first time he had ever reviewed the tapes.)

The defendant claimed that he installed the camera to protect his legitimate business interests, namely to prevent theft and robbery by people who might enter the room where the plaintiff worked. He also claimed that there was no invasion of the plaintiff's privacy because the office was not the plaintiff's alone but was shared with other co-workers. Further, as soon as the plaintiff made his displeasure known, the employer removed the camera. According to the employer the defendant resigned for the purpose of opening a competing business as evidenced by the fact that it was only after the camera was removed that the plaintiff gave notice of his resignation.

Regarding the facts at issue, the Court believed the plaintiff's version of events over the defendants. The Court rejected the defendant's claim that the camera was installed to prevent theft and not to observe the employees and that this was the first time he had ever reviewed the tapes. The Court said that whether or not the camera could see every detail of what the employees did in the office and whether or not the defendant ever viewed the tapes was not relevant considering that the recordings were available to the defendant over such a long period of 7 years.

On the legal issue of whether there was a violation of privacy, the Court quoted a recent Supreme Court case, Tali Isakov Inbar v. The Women’s Employment Law Commissioner et al (hereinafter, "Isakov") for the proposition that there is an expectation or right of privacy even in the workplace.

The right to dignity as a constitutional right is established in paragraphs 2 and 4 of the Basic Law of Human Dignity and Liberty which teaches that "There shall be no violation of the life, body or dignity of any person as such." and that "All persons are entitled to protection of their life, body and dignity." The right to privacy is fixed as a constitutional right in Article 7 of that Basic Law, which states as a "general provision" that "All persons have the right to privacy and intimacy." The Basic Law also establishes a duty on the State to protect the individual from intrusion "into the private premises of a person without his consent" and that "there shall be no violation of the confidentiality of conversation, or of the writings or records of a person" and the negative right that bans a search on the private premises of a person, his body or personal effects."

... Within the area of the objective constitutional value of privacy, is included even a privately enclosed space, in which stands the need to protect an individual's "personal interest in exercising his autonomy, his peace of mind, his right to be alone and his right to dignity and liberty." Accordingly, the enclosed private space falls within the objective constitutional value of privacy "even in a place where there is no possessory interest (such as a parents' home, a hospital, a voice-mailbox)" or a place of work.

The Court then noted that the Protection of Privacy Law, states that "No person shall infringe the privacy of another without his consent." An invasion of privacy includes "photographing a person while he is in a private domain." But what is considered a private domain? Is a workplace owned by the employer a private domain? The Court cited caselaw establishing that the right to privacy is a personal right, not a right linked to specific places. It is a dynamic right that moves with the person, not a static right that is based on ownership.  (For an example of a dynamic private domain in Jewish law, see Talmud Bavli, Tractate Baba Basra page 10.) A private domain is a place where a person takes steps to prevent people from knowing what he is doing. (A related concept in American law is the expectation of privacy which primarily deals with freedom from government search and seizure but is used in the context of violation of privacy as well.)

The Court said that a workplace camera would not violate the employees' right to privacy if they were aware of its existence. (Tip for employers: tell them there is a camera. You might even want to tell them there is a camera when there is not.) But covert filming of the employees was a violation of their right to privacy. The defendant's removal of the camera, while a gesture of his willingness to right the situation, was not enough to remedy the past acts of invasion of privacy. The Court went on to say that it was reasonable for the plaintiff to not want to work for the defendant any longer and his resignation could be considered a termination, entitling him to severance pay for all the years of his employment. But the Court found that the employer's installation of the camera was done in good faith, thinking that it was legal, and therefore the plaintiff was not entitled to compensation for emotional distress. My American side probably does not agree with that part of the ruling, but my tort reform side does.

In the Isakov case mentioned above, the National Labor Court ruled that an employer can read an employee's email only if the email service is provided by the employer and the employee is aware that her email may be monitored by giving written informed consent where there is a clear employer policy in place. Attorney David Mirchin summarizes the employer's obligations here as follows:

• Employers must have a clear, written, e-mail and computer use policy that addresses employees' permitted use of the information technology available in the workplace and use limitations and restrictions; circumstances in which employees will be monitored; information about the employer's monitoring tools and technology; how long monitored information is retained by employers, and the employer’s intended use of such information.

• The e-mail policy should be attached to the employment agreement and approved by the employee.

• If the company has an employee handbook, the e-mail policy should be included.

• Employers should appoint a privacy officer to raise awareness of privacy issues and enforce the e-mail policy.

(See also here, and here.) 

Mirchin writes that the following questions remain unanswered after the Isakov decision: Is reviewing the subject lines of e-mails an actual inspection of the content of e-mails or not? What about analyzing the "recipients" of the e-mails? How about the format of attached files to see if an employee is sending music or video files?

See this article for a discussion of US law on government searches of email. I will quote two relevant parts of the article:

United States v. Forrester, the 2010 case in which the 9th U.S. Circuit Court of Appeals at San Francisco extended Smith to the cyberworld. The court held that the government did not invoke the Fourth Amendment when it had a target’s Internet service provider install a monitoring device that recorded the IP address, to/from email addresses and volume sent from the account.

“When the government obtains the to/from addresses of a person’s emails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the website,” the court said. “At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the email to/from addresses and IP addresses—but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed.”

Nevertheless, wrote Judge Boggs, “email is the technological scion of tangible mail, and it plays an indispensable part in the information age. … It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.”

Added Boggs: “If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. … The police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. … It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.”

For more info on Israel's privacy laws see here, here and here.

For good information on employee monitoring in the US see here.

Jewish law recognized a right to privacy from its earliest days. For some literature on the Jewish law view see here (pages 142-159) and here.

For an article on Jewish law and severance pay see here, for an article on Judaism and human resource management see here, and for an article on human dignity in the Jewish tradition see here.