The cat's out of the bag

Our friends at Acme take an interest in an employee's daily journal

The computerized technology Acme has been installing during the past six months is the result of a sense of urgency fed by that nagging, desperate feeling the company might be lagging in its acquisition of the latest digital bells and whistles.

Critical production assets are now outfitted with sensors that monitor equipment condition. Wireless transponders forward the collected data to a central server, where artificial intelligence performs computerized analysis in real time. There's no doubt about it, Acme is moving from a reliance on hands-on work to placing a premium on those who can coax a computer to do the work. It's just one company's manifestation of the productivity increase powering our jobless economic recovery.

Izzy Dunn, an Acme plant engineer, doesn't seem to get it. He feels it's more important to work up a sweat on the plant floor every day, as he has been doing daily for the 12 years he's been on the job. You'll find him sitting in his cubicle early in the morning getting his day organized. Then, before the rest of the crew shows up, he's already in the bowels of the plant. He resurfaces again well past the end of the shift to complete the paperwork his day's work generates and inputs it using the one finger style.

Communicating via Acme's new system is radically different from the way employees used to operate. The newness, compounded by the pace at which change is happening, sometimes makes it difficult for everyone to get up to speed. Many are learning as they go, using trial and error. For example, if you want to send a broadcast e-mail to announce a meeting, upcoming system change or other business, you must establish your own list of recipients. Unfortunately, getting it set up is a rather complicated process, so some senders fail to include every intended recipient on their list. Consequently, because some people never find out what's going down, they're blindsided, tied up when a meeting starts or unable to react when a change goes into effect.

When he's on the receiving end of such a snafu, Izzy interprets it as just more evidence of blatant age discrimination at good ol' Acme. He became so paranoid that he started to carry a notebook to record, in excruciating longhand detail, every perceived affront and indignity Acme's employees inflict on him. Now, he carries a tiny, sensitive cassette recorder that he can pull out, record a few muttered words and reseal back in its water- and oil-resistant pouch. He also discovered that he didn't even need to hold it to make his comments. The device was sensitive enough that he could activate it in his pocket and talk in an almost-whispered tone. When doing so, it gave the impression that he was a loony talking to himself as he worked. Later, embellishing on the few recorded words and thoughts, he transcribes the full idea into an expanding notebook collection he keeps safely at home.

In the office, Roland Onaribber, Acme's plant engineering manager, is frustrated. No amount of hinting, suggesting, pleading or commanding was sufficient to induce Izzy to take advantage of the training program Acme's IT department established for employees. 'There's too much to do out in the plant' , was the gist of Izzy's responses. Now, however, Roland views Izzy strictly in terms of unnecessary labor hours being charged against the departmental budget, which, incidentally, had been severely slashed to help pay for the new technology. It was with some degree of remorse that Roland finally decided to tell Izzy it was time to part company.
As soon as Izzy realized this conversation was going to be the end of his career at Acme, he calmly slipped his hand into the inside pocket of his jacket and surreptitiously activated his trusty recorder.

The next day, Izzy packed up his notebooks, a cassette containing the history of his career at Acme, a second recording of his termination meeting and copies of e-mails and other documents that he thought clearly indicated he was being kept out of the loop. He then went to a local attorney to try to confirm that his claim of age discrimination against Acme was strong enough to prevail in a courtroom.

A week later, the attorney returned the documents and cassettes, along with a letter explaining his decision to decline taking Izzy's case. Unfortunately, the attorney's mailroom attendant addressed the box to Izzy at the Acme plant. When the carton arrived, it ultimately found its way to Roland's desk, who opened it and read the materials carefully. After removing the cassettes for later review, he photocopied and sent some of the documents to Acme's director of HR using the interoffice mail. He then resealed the box and sent it to Izzy.
Upon receiving the envelope, the director scanned the material and merely passed it to a secretary with instructions 'to file it. The secretary read through a few of the papers and chuckled at the content. She then opened a file drawer, shoehorned the entire bundle into the folder with Izzy's name on it, and shut the drawer.

After trading several calls with the attorney, Izzy realized where and when his tape cassettes went missing. He found a second, far more receptive attorney who, having great interest in Acme's invasion of privacy, took the appropriate steps needed to redress the wrong inflicted on his newest client.

How could this situation have been prevented? Does an employee have a right to privacy in the workplace? To what extent does an employer have a right to open an employee's private mail? What measures could Acme take to better integrate a techno-phobic employee?

What's the best way to handle an employee who may have gone over the edge?

A consultant says:
The point in the vignette at which this problem could have been avoided occurred long before privacy became an issue.

Roland gave Izzy direct instructions to attend technical training. What's with Roland tolerating Izzy's refusal to go? The job requires technical training; the training is being provided. You don't go, you don't work here anymore. Period. Acme isn't responsible for the phobias of its employees. Why Roland went through hinting, suggesting and pleading is beyond me. A four-step disciplinary process should have been initiated the first time Izzy refused to attend the training.

Refusing training was a choice that Izzy made on his own; an insubordinate choice. By definition, a phased approach to discipline would have put Izzy on notice as to the increasingly severe consequences of continuing to refuse training consequences that would be imposed only if he chose to continue being insubordinate. Given that Izzy would be controlling both whether and the degree to which the discipline would escalate, once terminated, it's unlikely he would have pursued litigation at all. If he did, Acme would have the necessary documentation to defend itself.

Regarding Roland's actions after Izzy's termination, I suspect this is a question around which the law has 'bright lines. In my opinion, however, 'personal mail received at work'is an oxymoron. I believe Acme had every right to open the package, but it should not have been Roland who did so. Furthermore, Roland's next steps were most certainly unethical, whether legal or not. Roland should have given the entire package to HR;  any director of HR worthy of the title ought to be familiar with whatever the law is regarding 'personal mail received at work.

As for the last question: 'What's the best way to handle an employee who may have gone over the edge?'The same way you handle employees who haven't gone over the edge. You articulate measurable performance expectations, track and document performance against these expectations, and then reward, develop or discipline accordingly. Greater benevolence, just like greater malevolence, will ultimately net negative consequences.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:
This is really a case for an attorney, which I am not. However, there are some general rules that might add some perspective.

As to whether Acme was justified in opening the mail addressed to Izzy, in general the answer is 'yes' , if it had the company name and address on it. Mail addressed to the company is company mail and the company has a right to open it (just as they can monitor incoming e-mail).

Did Acme have the right to keep it or duplicate it? I think they did have the legal right, particularly if the contents pertain to Acme. However, we can get into some interesting situations here. For example, consider the case of the married woman who was having an affair and her lover was sending torrid love letters to her at her place of employment. She quit her job and apparently quit him also, but the letters kept coming (talk about a lover who didn't get the message). Whose letters are they the woman's, the company's, the lover's or the husband who wants them for his divorce suit? The letters make juicy reading, but what should the company do with them?

Also, I'm not sure Izzy could have used his taped conversation with Roland anyway. Recording conversations without the permission of the other party is usually considered illegal and therefore not usable.

Could Izzy have been better integrated into Acme? Maybe with a good performance management system. Izzy should have received some clear signals as to his current performance, as well as how he needs to upgrade it to keep it in the acceptable range. And he should have been offered some development options to bring his skills to an acceptable level. You could not ask for much more from the company. If an employee doesn't respond, then that's cause for termination or transfer to another position.

On the other hand, Izzy acted a bit strange and I am not sure if he could have been helped. Offers of counseling (through an EAP program) would be one option. However, my experience is that counseling sometimes works for minor problems and Izzy is well beyond the minor leagues.

Prof. Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:
The right to privacy in the workplace and elsewhere normally hinges on whether the employee had a reasonable expectation of privacy. In this case, Izzy did have an expectation of privacy in his cassettes and personal notes, since he chose not to share them with his employer and kept them safely at home.

When an employee leaves a company, the employer is perfectly entitled to open mail addressed to the employee in his former capacity with the company a customer complaint letter, for example, addressed to a customer service representative. But if the mail clearly is personal, the employer should simply forward it to the former employee's last known address.

Izzy may be in for a surprise, however, when he learns that in many states it is unlawful to tape record a conversation without the consent of both parties. As a result, his tape recording of the termination may be unlawful.

Izzy may have another claim against Acme: that of theft or conversion of his personal property, the cassettes. This claim may turn out to be the more significant of Izzy's claims. If he files a lawsuit against Acme, the company would likely obtain his cassettes and notes in the process of discovery, that phase of a lawsuit in which the parties exchange relevant documents and information about the case.

Roland seems to have missed the boat in one respect, however. An employer is perfectly free to require employees to participate in mandatory training. If Roland commanded Izzy to take training provided by the IT department and Izzy failed to do so, he should have given Izzy a warning and then terminated him for insubordination. While older workers may hope that the employer's way of doing business never changes, they have no one to blame but themselves if they refuse to keep up with the changing times.

Julie Badel, partner
Epstein Becker & Green P.C.
(312) 499-1418 
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