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Abstract

Employees can cause harm to their employers through Information and Computer Technology (ICT) in employment relationships; for example, through surfing for adult material on the Internet or leaking company secrets via a mobile phone. Employers have responded to this development by introducing various surveillance systems. Besides well-known forms of Internet and e-mail surveillance, positioning systems are becoming a new trend. The influence these systems have on the employment relationship can be far-reaching, as they offer the employer an insight into the employee’s whereabouts, outside the company premises as well as outside company hours. As a consequence, the boundaries between the private and the employment spheres become blurred. This raises the question of whether the introduction of ICT in employment relationships causes a shift in balance of power between employers and their employees. If so, the question is whether this shift is properly counterbalanced by the existing legal framework. This article assesses these questions from a comparative perspective, analyzing the United States and the Netherlands. Not only do tThese countries do not only greatly differ in their way of thinking about privacy and privacy regulation, but also, their basic principles and regulations of labor law are very different. Comparing these two countries will therefore provide an interesting insight into the impact of ICT on the balance of power between employers and employees. No specific legal rules are in place regarding the tracking and tracing of employees. Therefore, this article first analyzes the legal framework regarding e-mail and Internet monitoring, for which case-law provides a more or less clear framework. It then uses elements from this framework to judge whether sufficient guarantees are in place with regard to systems used to localize employees. For both the United States and the Netherlands, concern is expressed with regard to the way in which ICT seems to empower employers. Recommendations are provided to counterbalance the shift in power caused by the possibilities ICT offers employers to keep track of their employees and the lack of effective legislation in this respect.