The Law School Magazine  ·  Winter 2013 : Alumni Profiles

Courts redefining expectation of privacy in workplace

By - Winter 2013
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This story originally accompanied the feature “The Creepy Factor: Technological innovation creates new wave of privacy regulation.”

Employment laws have not caught up with technology – and are unlikely to do so anytime soon, offered L. Camille Hébert, the Carter C. Kissell Professor of Law at Moritz who has written a treatise on employee privacy law.

The Supreme Court of the United States ruled that workers can expect a degree of privacy in their private offices. For example, employers generally have to respect boundaries when it comes to physical space, such as not rifling through an employee’s desk drawers or filing cabinets, even if the desk or filing cabinet is company property. There must be either a reasonable suspicion that the employee has violated workplace policies or a noninvestigatory need for the search. Additionally, employers normally cannot listen in on a personal call as it’s taking place on a work-issued landline.

“This is my filing cabinet,” Hébert said, tapping a drawer behind her desk in Drinko Hall. Then, motioning toward her computer monitor, she added: “This is my electronic filing cabinet because I never delete anything. Yet, the courts have had a lot of difficulty trying to decide whether employees have an expectation of privacy in their computers and their use of email and the Internet.”

Ownership often is at the heart of lower court rulings in cases involving computers and digital data, such as emails, computer files, and Internet search histories. Employers who publish policies warning employees about the employer’s intent to access equipment, monitor systems, and review data are supported by the courts routinely. The Supreme Court skirted the issue when deciding a case in 2010 involving a SWAT sergeant using a work-issued pager to send an enormous number of messages to his wife and mistress. The court took great effort to avoid setting precedent relating to the reasonability of searches, indicating that technological changes and social norms are evolving too rapidly to keep pace.

“The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” Justice Anthony Kennedy wrote. “Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.”

Hébert said employees’ privacy may be vulnerable when it comes to their personal devices as well. Personal laptops used in conjunction with a workplace wireless network, computers at home used to access work servers and webmail, and even a smartphone brought to the workplace could be the next areas in which privacy challenges arise. While courts are correct to defend the right of employers to ensure that time at work was spent on work, but devices are teeming with personal information that most people may not want to share with their employers, Hébert said.

“If you really thought about what employers can do, you’d be paralyzed,” she said. “Fortunately, most employers are not interested in looking through your passwords or personal data. They realize it would be detrimental for employee morale.”

Still, there always will be those who push for greater access. When media reports surfaced in 2012 of job applicants being asked for social media account information and passwords, legislators in a number of states, including California, Maryland, and Illinois, got to work on crafting laws prohibiting such intrusion. In the nation’s capital, Sens. Charles E. Schumer of New York and Richard Blumenthal of Connecticut called for probes into whether the practice violates federal law.

Facebook executives argued employers who requested such information of job applicants opened themselves up to risk of discrimination claims. Gender, race, religion, age, and more can be found on a profile.

Some companies that did not directly ask for social media account information
took other steps, such as asking an applicant to “friend” a human resources manager. Third-party applications, marketed as a way to help job-seekers network, can be used by potential employers to access personal profiles and wall messages. Job applicants also reported being asked to log on to a site during the interview or required to sign nondisparagement agreements banning negative talk about the employer once hired.

“Probably the safest way to use Facebook is to not have any ‘friends’ at all,” Hébert said, “but that probably would defeat the purpose of being on Facebook, right?”

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