Disciplinary and Harassment Investigations

i. Employee Right to Privacy in Telephone and Email Communications The United States Supreme Court has determined that what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected under the Fourth Amendment’s guarantee of freedom against unreasonable searches and seizures. In Katz v. United States , the court found the government’s procedures constitutionally invalid when a telephone conversation was monitored by an electronic surveillance device attached to the outside of a public telephone booth where the defendant was prone to place interstate wagers from a particular telephone booth. 105 The court concluded the Fourth Amendment “protects people, not places.” The Fourth Amendment is now held primarily to protect “reasonable expectations” of privacy, including, as in Katz , conversations originating from a public telephone booth. As previously noted, the United States Supreme Court in O’Connor v. Ortega , held that work- related intrusions by public employers may be justified by the governmental interest in the efficient and proper operation of the workplace. 106 With respect to investigations of work-related misconduct, the Court stated that:

“Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement or other work-related misfeasance of its employees…Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practice and procedures, or by legitimate regulation.”

Applying this reasoning to the issue of employer’s monitoring of employees’ computer usage and given the Court of Appeals decisions in U.S. v. Ziegler and Leventhal v. Knapek , 107 courts will likely uphold a public employer’s right to monitor or review an employee’s electronic mail correspondence, either prior or subsequent to initiation of an investigation, as long as the employer’s policies and procedures make it clear that the employer retains that right. ii. Employer Access to Employee Voice and Electronic Mail The Federal Electronic Communications Privacy Act of 1986 makes it a crime to intercept voice or email messages but contains an exception for “the person or entity providing the wire or electronic communication service.” Therefore, the law does not prevent an employer from accessing employee voice or electronic mail maintained on the employer system, but may prohibit the employer from intercepting those messages if the employer uses an outside service. 108

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 60