PRIVACY IN THE WORKPLACE
An employee’s private life oſten intersects with the workplace through personal phone calls, personal emails, etc. It is also likely that an employee will store personal information and data on the employer’s computer system or other resources in the workplace.
Tis raises several concerns for the employer, including:
• The need to clean computer systems and resources frequently of non-work related material or data in order maximise space for official work
• Addressing security threats to proprietary, sensitive data owing to (inadvertent) downloading of viruses, etc.
• Avoiding potential liability owing to
unauthorised act and/or wrongful access, use and storage of copyrighted and other proprietary information/material
• Ensuring employees are efficient, monitoring employees to detect misconduct, etc.
• Monitoring to detect and avoid crime and any associated liability for the employer—for example, if an employee commits a crime using office-provided computer resources, such as credit card fraud, or downloading and uploading obscene and prohibited material, etc.
So an employer’s right to monitor and have access to its computer resources and all material found thereon is well founded. Privacy of the employee, on the other hand, is also at least as important. Because of this, privacy has become one of the most contentious issues in an employer-employee relationship.
Tere is no direct legislation governing the interaction of an employee’s right to privacy and an employer’s right to access its own resources in the US, the UK or India. However, the US appears to have a statute that indirectly governs this relationship, in addition to several court judgments. Most of the cases in this domain rely on constitutional and human rights provisions found in legislation and treaties, such as the European Union Convention on Human Rights.
A landmark US case is Michael A. Smyth v. Te
Pillsbury Company. Te appellant claimed that he was wrongfully dismissed from the defendant’s company. Te defendant maintained an email network in order to promote internal corporate communications and assured its employees that all email communications would remain confidential and privileged. Further, it assured its employees, including the plaintiff, that email communications would not be intercepted and used by the defendant against its employees as grounds for termination or reprimand.
However, in October 1994, when the plaintiff received certain email communications over the defendant’s email system on his computer at home, he responded and exchanged emails with his supervisor, relying on these assurances. Later, the defendant intercepted the plaintiffs’ email messages and notified the plaintiff that it was terminating his employment effective February 1, 1995, for transmitting “inappropriate and unprofessional” emails.
In contrast, in Doe v. XYC Corporation, the court said that an employee’s privacy interest does not trump the employer’s right to monitor an employee’s computer to see if the employee had breached a duty. In this case, the plaintiff sued the defendant because of its lack of action when the plaintiff ’s husband sent nude pictures of their daughter over the Internet from the official email system.
“ IF AN EMPLOYEE WISHES TO MAINTAIN AN ENFORCEABLE PRIVACY INTEREST IN THE WORKPLACE, HE OR SHE WILL HAVE TO TAKE AFFIRMATIVE STEPS, SUCH AS USING A LOCK ON A DESK OR LOCKER”
Te court ruled: “[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. Significantly, the defendant did not require plaintiff… to disclose any personal information about himself…We find no privacy interests in such communications. In the second instance, even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications over the company e-mail system, we do not find that a reasonable person would consider the defendant’s interception of these communications to be a substantial and highly offensive invasion of his privacy. Moreover, the company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments. In sum, we find that the defendant’s actions did not tortuously invade the plaintiff’s privacy and, therefore, did not violate public policy.”
42 World Intellectual Property Review May/June 2010
In Leventhal v. Knapek, the court held that even though the employee had reasonable expectation of privacy when using his office computer, the agency had specific suspicions justifying its search for ‘non-standard’ soſtware, so was within its rights to conduct an investigatory search. Te appellant’s reliance on the Fourth Amendment to the Constitution was rejected, although the
decision of O’Connor v. Magno J. Ortega was
extensively discussed.
Tat case saw the Supreme Court determine the applicability of the Fourth Amendment to a public hospital’s extensive investigatory search of a physician’s office while he was on administrative leave. Te Fourth Amendment of the United States says:
“Te right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It was determined that the test for whether the Fourth Amendment implicated by a public employer’s search of a workplace is whether the employee had a reasonable expectation of privacy. Te reasonable expectation of privacy test is equally applicable when courts examine whether a government search of a private workplace violated an employee’s Fourth Amendment rights.
As per O’Connor, whether an expectation of privacy in the workplace will be deemed reasonable will depend on a case-by-case analysis. In other words, an enforceable expectation of privacy will not be found under O’Connor if an employee’s space is regularly accessed by others. If an employee wishes to maintain an enforceable privacy interest in the workplace, he or she will have to take affirmative steps, such as using a lock on a desk or locker. Another means of eliminating an enforceable expectation of privacy under O’Connor is through an employer policy or regulation.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA), which provides a strong legal incentive for employers
www.worldipreview.com
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