Posted by marykeating on June 19, 2010 under Workplace privacy | 
As reported here a few months ago, the Supreme Court was poised to take on a controversy which, depending on the breadth of the opinion, could have ramifications for the vast majority of employees.
The case involved a California SWAT team member who used his department-issued pager for personal use. Although the department policy stated that the pagers belonged to the department, and that the individuals had no right to expect privacy in their use, the reality had altered over time. Quon’s supervisor told him that he must pay for all over limit charges on the pager to avoid an audit. Quon reimbursed the city every month.
The department decided to audit the pager use, since a number of employees were exceeding the limits on their text messaging, leading the brass to think that people were using the equipment for personal use during work hours. In the audit, they discovered that Quon had sent (and received) sexually explicit text messages with his estranged wife and his girlfriend. He was disciplined. Both women, as well as a friend of Quon’s whose personal messages had been intercepted, joined him in the suit against the department for violation of their privacy rights.
The Supreme Court elected not to address directly the extent to which r a public employee enjoys a privacy right in this setting. Under the Fourth Amendment, a person has the right to be free of unreasonable searches and seizures by the government. The Supreme Court unanimously concluded that the search of the pagers’ text messages was acceptable. “Because the search was motivated by a legitimate work- related purpose, and because it was not excessive in scope, the search was reasonable . . .”
The pager user in this case, together with other groups filing briefs on his behalf, urged the Supreme Court to approach the case from the vantage point of the privacy concerns implicated by any employer intruding on an employee’s private messages. But the Supreme Court often (though by no means always) prefers to limit its decision to a narrow point of law facing it. Here, a public employee whose on the job messages were likely to be scrutinized after a typical SWAT team encounter had an insufficient expectation that his messages would not be reviewed.
Private sector employees will not have the ability to complain that they were subjected to an unconstitutional search and seizure when their employers review their email or text messages. With the proliferation of electronic communication, it is more likely that state laws will need to be enacted to address these issues.
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).
