Posted by marykeating on January 4, 2010 under Workplace privacy | 
The Supreme Court will decide whether a police officer in California has the right to prevent his bosses from reviewing text messages he sent from a department-issued pager. 
Like many employers, the City of Ontario has its employees sign agreements acknowledging that they may not use its computers for personal matters, and have no expectation of privacy in any messages sent. When the pagers were issued, the department stated that the email policy covered the pagers, too. But a different message was conveyed by the department, which told Sergeant Quon and his peers that they could use the pagers for 25,000 characters per month; they would be charged for messages exceeding that limit. Quon exceeded the message limit and paid for the overage.
The department decided that the text volume may indicate that some employees were wasting time, and ordered an audit, including transcripts, of the messages. Quon and another officer objected when the department released the transcripts, showing that Quon sent sexually explicit messages to his wife and another woman. The Ninth Circuit Court of Appeals ruled that the employees had a reasonable expectation that the messages would remain private, given the department’s earlier treatment of pager use.
The Supreme Court may choose to issue a narrow ruling, limited to employers with policies like that of Ontario. On the other hand, it may broaden its discussion of employee privacy rights in general, or government employees as a group. Part of the lower court’s decision related to the Fourth Amendment to the constitution, covering unreasonable searches and seizures. The Fourth Amendment applies to federal and state governments, not to private employers.
Ordinarily decisions in cases accepted at this point are issued by the end of the term, in June. The case is Quon v. City of Ontario. It’s discussed at the SCOTUS blog, whose wiki also has links to the briefs.
Posted by marykeating on October 9, 2009 under Discrimination in employment, Workplace privacy |
Employees these days are flooded with applications. So they have to weed out people somehow. Once you get past the poorly done cover letter, the resume with typos, the lack of relevant experience, there may still be a pile of possibly good candidates. What’s an employer to do?
Well, some are demanding from applicants the right to run credit reports, and to use the results to make decisions. An employer who obtains a credit report without a valid reason or authorization is asking for trouble under the Fair Credit Reporting Act. But what about the ones who have permission?
Bad credit can be a very loose proxy for poor judgment or irresponsibility, of course, but the credit report itself seldom gives a realistic portrayal of the circumstances that explain the credit card load, the repossessed automobile, or the lawsuits by the hospital. Divorces, job loss, and medical catastrophes cause more bankruptcies than anything else, so it stands to reason that they are behind other bad ratings in a credit report. Employers relying too heavily on credit reports will deprive themselves of good workers. They may also, inadvertently or not, exclude disproportionate numbers of women, minorities, and young workers.
Some employers have a reasonable basis for requiring a credit report. Companies with contracts requiring national security clearances may have to be careful of the employee with too much debt, implying a weakness for espionage. (Or is that all left behind with the cold war era?) Employees hired to handle cash or bank accounts may warrant additional scrutiny if their credit reports indicate late payments in their personal lives, or huge debt loads. But as a tool for analyzing which applicant for a job or a promotion would do the job well, the personal credit report is a dull ax, and should be used only with some refining, such as giving the employee the right to explain thoroughly. In fact, under the FCRA, an employee has the right to know that the report’s findings were used against him or her. It is hard to discover if that requirement was ignored, though.
Posted by marykeating on September 29, 2009 under Uncategorized, Workplace privacy |
As I mentioned before, an employee can’t be certain that use of the employer’s computers will remain private. Employers are worried about the loss of trade secrets, such as customer lists and pending contracts. They also are concerned by the amount of nonproductive time that people spend on the computer. A new study just reported that one-third of the large employers surveyed have personnel dedicated to reading outgoing email. A higher proportion report monitoring outbound email. Employers also monitor social websites, and look for evidence of their employees leaking sensitive information, or badmouthing them.
Email is seductively easy, and that delete key seems permanent. Yet deleted files are not too hard for an expert to recover, and outgoing emails can be intercepted and copied if the employer’s computer is set up that way. Personal messages should be sent from home, or from a personal hand-held device.
Even if the employer does not actively monitor outgoing email, employees need to separate their private and job lives. This is more difficult when the employee’s main computer is a company-provided laptop. But I’ve seen many instances when an employee is suddenly terminated, and cannot get access to saved emails, personal financial information, list of favorite websites, and other personal letters or writings. The employer now has access to all of that, and may well decide to take a look. I’ve also seen employees fired for personal use of the employer’s computer systems, especially if the personal use includes dirty jokes, pornography, racist jokes, and similar content that makes the employer nervous, for good reason.
Protect yourself – keep your private life private, and review that company policy manual on computer usage.
Posted by marykeating on August 31, 2009 under Workplace privacy |
The typical modern worker uses email and the internet for lots of work and personal reasons. Sometimes the purposes of those uses blur; certainly the time spent on the internet is often a mixture of personal and professional. It seems almost effortless to multi-task, and we can handle a query for work together with a quick look at the deal of the day on Amazon.com.
The Problem for the Corporation.
But the typical modern corporation grows ever more concerned about its exposure by computer use, and for good reason. Sexual harassment can arise easily with the help of technology. Consider these examples, all from recent cases of mine: a man watches internet pornography on a computer in a cubicle (sound travels); emails with links to risque videos are misaddressed to someone who finds them offensive; email jokes with offensive racial or sexual content make the rounds through a company through that easy “forward to” function. As soon as the company finds out, it needs to act. An effective way to deal with sexual harassment claims can be to fire the harasser. If the entire place is infected, though, the company may instead put strict limitations on the use of its equipment.
The Extent of Corporate Surveillance.
As a result of the dangers of computer misuse, coupled with the incredible array of time wasters available on the internet, some companies have instituted a zero tolerance ban on personal use of the company computer system. Others are more realistic, recognizing that employees who work more than eight hours per day may need to engage in internet shopping, check with the children, or just relax for a few minutes. According to a study by the American Management Association published in 2008, more than half of the employers surveyed monitored and reviewed website connections, almost two-thirds blocked access to certain websites, and a quarter monitored the time spent and the phone numbers called on company phones. A quarter of employers also used video surveillance to counter theft, violence or sabotage.
Even if you are working harmoniously with your employer, the lack of privacy has other impact. Some employers use keystroke loggers, which can measure productive work, but also record passwords, emails, and the like. Even when the level of intrusion is lower, an employee needs to remember that an IT department employee can often read electronic traffic through the company’s system, even when the employee is utilizing his own, non-corporate email account. That is, an employee who logs onto his yahoo email account may inadvertently leave tracks that allows the employer to read the message sent, if not messages received. You have to remember that the corporation is made up of individuals, and they may not all be nice people. If it’s easy to intercept your facebook password, someone may use it to mischief or worse. Your password to your on-line banking account may be revealed to the IT department if you pay your bills online.
Why Employees Need to Monitor their Own Behavior.
A significant percentage of employers who engage in recording their employees’ computer use, phone calls, or movements do not tell employees that they are doing it. Others mention it in the policy handbook, but not otherwise. Under the Maryland Wiretap law, recording workplace phone conversations without consent is legal if the recording apparatus is part of the company’s telephone equipment and there is a business reason for recording conversations, such as evaluating employees’ interactions with customers. This same law probably makes video and audio surveillance illegal, but not video-only surveillance.
Regardless of the degree of corporate tolerance, the employee should keep vigilant in using the employer’s system, remembering that he is a guest in the employer’s house. You may feel at home in your office, but it is a mistake to assume that interaction done quietly on a company’s system will necessarily remain private. Some of my clients, for example, have made the mistake of sending emails to me from their company email account. Notifying a lawyer that you are unhappy about your work treatment is especially problematic. You may forfeit the attorney-client privilege and reveal your private communications to the very company you mean to pursue.
To protect yourself:
- use your own cell phone;
- if the blackberry belongs to the corporation, assume it can read what you put on it;
- assume your email is being monitored — engage in personal email from home;
- don’t search for adult, pornographic, or sports sites at work;
- don’t use your company computer to do your banking or other financial transactions;
- ask if you are being recorded or monitored;
- if you blog or comment about your employer, do not assume that your comments will necessarily stay anonymous (more about this later).
