Wal-Mart and Workplace Privacy

When you teach in a subject as fast-moving (and as prone to media attention) as data privacy law, this sort of thing happens all the time: my seminar is considering workplace privacy later this very afternoon, and here in this morning’s New York Times is a story [as always with the Times, registration req’d] about the extraordinary 400-person internal police force at Wal-Mart, the world’s largest private employer. It is run largely by former FBI and CIA agents. Their investigative tactics put teeth into the company’s famous long-standing emphasis on rigorous adherence to elaborate and very strict ethics rules. The article opens with the example of a Wal-Mart investigator who

flew to Guatemala in April 2002 with a delicate mission: trail a Wal-Mart manager around the country to prove he was sleeping with a lower-level employee, a violation of company policy.

The apparent smoking gun? “Moans and sighs” heard as the investigator, a Wal-Mart employee, pressed his ear against a hotel room door inside a Holiday Inn, according to legal documents. Soon after, the company fired the manager for what it said was improper fraternization with a subordinate.

As we will discuss in my class later today, there is very little limitation on private-sector companies’ investigations of at-will employees. After all, such employees can be fired for any reason or no reason. In most circumstances, as long as monitoring is established as a condition of employment — through, for example, providing a written policy to employees — it will be interpreted as “consent” of the employees (with a few exceptions). The Fourth Amendment provides some modest limits on public-sector employees, but does not apply to private employers.

You may find distasteful the notion of company snoops tailing employees and pressing their ears up against doors to hear “moans and sighs.” And to be sure, outside the workplace, employers have no greater leeway to spy than anybody else (as demonstrated by the Hewlett Packard spying scandal). But it sounds like the Wal-Mart cops stay within the law. And further line-drawing quickly becomes difficult. The Times article includes accounts of several instances where Wal-Mart investigators uncovered honest-to-goodness ethical problems, including a board member who diverted over half a million dollars to personal use (and eventually pleaded guilty to federal charges). In other areas of the law, notably sexual harassment, we are increasing our expectations of corporate knowledge about employees’ personal actions, some of them arguably within a private sphere. And judges have worried about the practicalities of prohibiting employers access to somewhat private areas such as desk drawers — what about when someone is out sick and colleagues need access to a file?

On the other hand, at-will employment isn’t entirely free of restrictions — discrimination is prohibited, and usually it is forbidden to fire someone for refusing to do something illegal.  Should we build in some privacy protections for employees too, given that many of us spend more of our waking hours at work than at home, and given the power differentials between employers and workers?

I think we have plenty to talk about in class today.

4 Responses to “Wal-Mart and Workplace Privacy”

  1. Sorry to chime in late, and far too late for your class. But I was struck by the apparent similarity here to landmark cases regarding sexual harassment. It is a manager have sex with a subordinate? Although I can’t tell the gender from the Times excerpt available to me, it does remind me of the gender and power relations aspects of privacy, and how privacy concerns can interfere, and historically have been used to interfere with addressing other concerns with exploitation (that are often gendered). It’s not only in the company’s interest to be concerned with higher-power employees’ possible sexual exploitation of people they have power over.

    I hope this issue was raised in your class!

  2. Thanks, L. It did come up in class, though you stated it especially well here.

    I agree completely that making employers responsible for maintaining a harassment-free workplace creates tension with creating private space for employees in the workplace. Lots of things are in tension with privacy in different settings (national security and crime prevention, policing defamation of copyright infringement, stopping bullying). It’s a matter of calibrating the correct balance.

  3. Hi…

    Im not sure if I totally agree with this whole Fraternization stuff here…I think its plainly unfair and wrong to keep people apart.

    Why do I say this? because I was forced to leave the SCenter I was in if I wanted for OUR relationship to go further even though he is married and I have my BF. But to us sooo what…we mite of hung out at work when neither one of us was busy (I was a f-end cashier and he is one of the Co-mngrs).

    YES, we both were warned by the store manager 2xs within a 2 month period….that if it didnt stop then we both would get fired. We were told if we both truly care for one another then we will keep the relationship as a working relationship only (little did the store mngr know), but I was told if we wanted to have this REAL RELATIONSHIP then Id have to transfer to another WMs. so I did and the both of us have gotten even closer to each other….that I will visit him when I have free time.

  4. my sister works at a wall mart. information from her medical file has become general knowledge through out the store. the manerger is of no help in this matter. it has to stop but we do not know where to begin. she is a very sensitive young lady and the comments to her med. problem is making her extremely unhappy. please someone tell us how to file a complaint and to whom. dont suggest the manerger or anyone who works in this particular store. it will not help