Intrusion upon Seclusion

Private Forums and Business - Intrusion upon Seclusion

June 2, 2009
Brief description of the event

A Houston restaurant employee created a private invite only discussion forum for fellow employees to confidentially discuss work and to vent their frustrations. Invitations to join the forum were sent to fellow employee's personal email accounts, workplace computers were not used and the forum was used outside of working hours. On learning of the forum Supervisors requested another employee to disclose their access information which has passed up the management hierarchy. This employee has since stated that they complied as they believed that declining to cooperate could have led to their employment termination. Managers viewing the forum found postings making negative comments about supervisors and making fun of customers. Management dismissed the forum creator and another employee for unprofessional conduct in opposition to policies of professionalism and positive attitude published in their employee handbook.

Legally the argument is whether the company has committed the tort of Intrusion upon seclusion by accessing the forum. The legal requirements of Intrusion upon seclusion are the plaintiff had a reasonable expectation of privacy, that the intrusion was uninvited and would offend and that private matters were examined. Whether companies have the right to access private forums outside of the workplace is the ethical issue.

Stakeholders

The key players in this dilemma are the two employees. Brian Pietrylo who created the forum listed its role in the forum introduction as ""a nice way to vent...without any eyes outside spying in on us. This group is entirely private,". He clearly saw this as somewhere that fellow employees could speak their mind in confidence without recourse and took appropriate steps to limit access to the forum to maintain privacy. The other employee, Doreen Marino, contributed to the forum and comments were made that would be inappropriate in public but would fall within the bounds of conversation regarding work in a person's home. Both were engaged in customer service roles at Houston's, Pietrylo as a bartender and Marino as a server, with a high external locus of control regarding their work their frustration may have led to the need to vent. The customer jokes, while perhaps in poor taste, may have been a use of humor to handle workplace stress.

Karen St. Jean, a hostess at the Houston's showed a manager the forum at an after hours gathering. Both parties found the forum amusing but this culminated in another supervisor requesting St. Jean divulge her access details for the forum. She was faced with the conflict of loyalty to her friends verses her loyalty to the company and felt that she "might get in some sort of trouble" by refusing a manager with a position of authority and compromise her employment. Her personal circumstances were not given, but it can be assumed that Houston's was her main source of earnings and termination would cause her financial hardship. St. Jean took an ethical egotism stance of protecting her own employment by providing the details, operating at Kohlberg's first stage of avoiding punishment.

Management felt obligated to determine what was being discussed and if it was damaging to themselves and Houston's. They may have justified pressuring St. Jean to provide access details via Rawl's ethics that it was unfair for manager's at Houston's to not have access to a forum for employees. They could also have justified this action through natural rights, that they had a right to see if and what was being posted about them. Managers found the postings regarding customers, negative comments about supervisors and jokes inappropriate behavior. The comments about supervisors would undermine their authority, damage moral, lose them the respect of co-workers and could have been viewed as personal attacks. After consulting with Human Resources and Senior management, Houston's decided to dismiss the Pietrylo and Marino as allowed by state law. With simple dismissal management may have used script processing to make the decision without examining the ethics of how the forum was accessed.

Customers would be extremely unhappy to find out they were the source of jokes and are likely to take their custom elsewhere. They have an expectation of courteous, professional behavior, though they may not always act the same with staff violating the golden rule of reciprocity.

In total 18 current and past employees were members of the forum and posted about Houston's, believing their comments were private only to later have their privacy shattered. Current employee's posted entries may have expected to be similarly dismissed but knowing that management is aware of their private opinions and feeling is likely to create an atmosphere of distrust. These employees should have considered the consequences of secrecy and the potential consequences of their posting ever being made public.

Houston's is highly sensitive to actions of employees that involve the company's name that could tarnish its image. The viral power of social media websites any inappropriate staff conduct can quickly draw large amounts of attention damaging the company brand and companies cannot rely on employee's maintaining adequate levels of privacy in their on-line communications.

The ethical issue

Houston's managers would have felt obligated to access the forum despite the privacy measures as it sought to protect years of investment in its brand from being tarnished by criticism from employees should the posting ever become public though actions of the forum administrators or failings of the host service. Also the publication of postings ridiculing customers would have diminished goodwill materially impacting business. Houston's managers as individuals would have felt the forum undermined their authority and would want to be aware of criticism regarding themselves. With many employees members of the forum the company would have been concerned about the negative remarks affecting company morale. An advantage of accessing the forum was giving senior managers uncensored clear feedback of employee sentiment and management issues.

The contrary argument that Houston's management should not have accessed the forum is that these postings were made outside of work and that the company has no right to inspect employees personal communications outside of the workplace. The company would have exceeded the bounds of generally acceptable behavior by inspecting employee's personal mail received at home but felt no such issue with accessing communications on-line.

Outside of working hours employees are free to carry out their lives provided they do not negatively affect the company's business. The forum was restricted to a select group of individuals and not publicly available, preventing damage to the company's brand and customer goodwill. The forum provides a valuable benefit to employees as a place to seek mutual support in periods of stress and give unity as part of an in-group.

The manager shown the forum by St. Jean found it entertaining and did not seem concerned about the content, however other managers were more insecure about the forum and sought access. Coercing an employee to provide access was a poor management decision and was the enabling action in this ethical dilemma. Houston's management failed to recognize accessing a private forum was an ethical issue, framing the issue as "accessing the forum" rather than "company authorized surveillance" avoided raising ethical concerns. The on-line nature of the forum and lack of physical harm by merely accessing the forum lowered the moral intensity of the decision again lowering concerns. Without identifying that there was an ethical issue Houston's management failed to follow sound ethical decision making steps. Applying the veil of ignorance management would find employees inspecting their personal conversations outside of work unacceptable, especially if the employees are the focus of discussion.

The underlying cause is why employees feel the need to vent about working at Houston's. Whether Houston's is responsible for the creation of the forum is important to preventing future issues. If the employment atmosphere at Houston's was such that employees needed to vent about their experiences and to feel support that others shared their feelings then the creation of a on-line forum is not surprising, and the privacy of the forum is a bonus for Houston's. The negative comments regarding supervisors may have been warranted and unsurprising, depending on the competency and people skills of the individuals appointed to these positions by Houston's and this needs to be evaluated. The employee handbooks loose definition on acceptable conduct of professionalism and positive attitude is not clear guidance and the dissimilar reactions of managers indicates a lack of consistent ethical culture. Managers insecurity over employee loyalty and their desire of compliance may have led to an environment where unethical behavior is likely to occur regarding employees privacy.

Recommendations to avoid future problems

Houston's could make a demonstration of care based ethics by providing a means for employees to vent their frustrations by subscribing to a phone based counselor service and the creation of a position within the company for employees to speak with about the frustrations of the work and to provide feedback to management on methods of improving the workplace. Houston's needs to address the general environment for employees as it has led to staff dissatisfaction which it has ignored.

Senior management should meet with privacy experts and legal counsel to develop and disseminate guidelines regarding the on-line privacy of employees. There needs to be a line drawn on what is intrusion into employee's private lives that they have not publicized and sought to keep private. Managers should be counseled that employees may discuss them and their work in private communications outside of work and that management does not have a right to view these communications unless they are in the public domain or have been authorized by the parties involved.

Houston's needs to train its management to identify when they are encounter a moral dilemma, some of this will come from the clear guidelines on the privacy of employees where this should increase the moral intensity of such matters in the future. Taking action that accessing the forums was inappropriate and reinstating those employees would generate an internal story for the future and provide a symbol that ethics were not to be compromised. This not an easy course of action since there is an escalation of commitment that they already involved in legal proceedings and undermines the authority of managers. Managers could be disciplined for violating the privacy of employees which would force ethical behavior in regard to employee privacy on at level 1 stage of development by encouraging them to behave ethically or risking punishment.

There needs to be a through review of the company ethical culture that led to these two ethical transgresses. It is unacceptable to place employees in situations where they believe their employment may be at risk if they do not help management gather details about other employees personal communications. Houston's should determine if the people they have promoted or hired as supervisors are ethical in their conduct and how to continually re-assess employees.

Houston's should add policies regarding posting on-line to employee handbooks since it currently lacks any guidelines. It seems reasonable to request that employees refrain from bringing negative publicly on Houston's by publicly discussing any dissatisfaction in their employment and that they are mindful that they represent Houston's to the public.

Employee's should be made aware that anything they post on-line may be viewable by more than the intended audience, privacy settings of forums may not be as believed, may change over time and information may be duplicated in public forums. Employees should be informed to take into consideration the consequences via virtue ethics of their postings publication and how it can affect the company's ability to operate and employ their workforce.

Recommended course of action

The recommended course of action is to fix the cause of the problem rather than trying to address just the symptoms. Houston's needs to address the environment which has led to such dissatisfaction and frustration as good ethical managers with consideration for their employees. Managers need to recognize that employees have a right to privacy and that while they may seek to protect the company's reputation, to investigate what they believe may be slander, damaging to morale and risk customer goodwill they are no entitles to violate the privacy of employees.

The recommended action is to reinstate the employees and discipline the managers involved since this would send a clear message that ethical behavior is valued above all and that future unethical behavior is unacceptable. The re-instatement of the employees involves breaking the policy of professionalism and positive attitude but these are overshadowed by the ethical breach of invasion of employee privacy. This would be apparent only to those operating at stage 5 of Kohlberg's moral development that managers had violated a social contract. Those operating at lower levels would have the punishment of those who took unethical actions to appeal to their reasoning at a stage 1 level. The employee's themselves had good intentions in creating a forum to allow them discuss their frustrations and to offer each other support that they were not along and created an in-group making them more likely to help each other.

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