Q. In a past column you gave certain limits to legitimate surveillance of employees. Since the workplace and the equipment belong to the employer, isn't he justified in introducing any means of observation he likes?

A. We wrote in the past that workplace privacy is not sacrosanct, but the employer needs valid justification to breach it. Among the conditions we mentioned are: a convincing basis for thinking that any information gathered will contribute to productivity, and fair procedures for using the information.

It's true that the fact that the workplace belongs to the employer gives him certain license, but not unlimited license. The Talmud likens invasion of privacy to a kind of damage (1), so we can learn something about this question by studying the laws of damages.

The Torah tells us that a person is liable for any damage caused by himself, by his property, or by a hazard he creates in a public area. "If a person opens a pit, or digs a pit and fails to cover it, and an ox or a donkey should fall there, the owner of the pit must pay" (Exodus 21:33-34). However, if a person maintains a hazard on his own property (a vicious animal, a hidden pit), he is not liable for damages to trespassers. (2)

However, this exemption from liability doesn't mean that a person is allowed to keep hazards on his property. On the contrary, the Torah explicitly warns us to maintain safe premises: "When you build a new house, make a railing for your roof; don't put blood on your house when someone should fall" (Deuteronomy 22:8). Even though the owner may be monetarily exempt for the injuries due to his unsafe premises, the Torah tells us that he has blood on his house; he shares in responsibility for the damage.

The requirement for a safe household, and by extension for a safe workplace, is not absolute. Some workplaces that were considered safe a few generations ago would be considered very hazardous today. There are reasonable and accepted standards which depend on circumstances. The same is true of privacy; the worker's right to privacy is not absolute, and under certain circumstances employers may have a valid reason to breach it.

But employers certainly do not have carte blanche to deprive workers of a reasonable and acceptable degree of privacy in the workplace, merely because the premises belong to the employer, any more than they have the right to ignore threats to workers' physical safety in accordance with generally accepted standards.

Another interesting parallel is found in the Talmudic dictum that "The law of the land is the law." (3) According to many authorities, the reason is that the land belongs to the king; therefore, he has the right to make laws which bind anyone who wants to reside there. Even so, it is generally agreed that this rule only applies to fair and equitable laws, not to arbitrary and exploitative ones. (4) So while it may true that "the law of the boss is the law," the boss is still required to make rules which are fair and justified by genuine needs.

SOURCES: (1) Babylonian Talmud Bava Batra 2b (2) Babylonian Talmud Bava Kamma 50a. (3) Babylonian Talmud Bava Kamma 113a. (4) See Shulchan Arukh Choshen Mishpat 369.

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