Privacy Issues in the Community College Workplace

policies that employment constitutes permission to conduct such searches. Arguably, once employees are clearly notified that searches of such areas are possible, they will lose any legitimate expectation of privacy in the area or the possession. Even if an employee has an expectation of privacy in certain areas, the United States Supreme Court held in O’Connor v. Ortega that a search may be permissible if the employer had reasonable grounds for: 1) suspecting that the employee had engaged in workplace misconduct; and 2) believing that a search of these office areas would turn up evidence supporting that suspicion. 404 In contrast, when an employee’s personal possessions, such as a purse or lunch box, are located in an area such as a locker where the employer might otherwise have a right to search, the employer should not open the employee’s personal possession without permission or assistance from law enforcement personnel.

Finkelstein v. State Personnel Board 405 An employer found information in a personal briefcase, after it had warned employees to remove all confidential papers from their offices in preparation for an office move. The court allowed the contents of the briefcase to be introduced as evidence in an administrative disciplinary hearing, holding that the Fourth Amendment exclusionary rule did not apply. The court’s reasoning turned on the fact that the search was motivated by the employer’s desire to prepare to move the office rather than by the desire to uncover evidence damaging to the employee.

C. M ONITORING OF E LECTRONIC C OMMUNICATIONS The advent of new forms of advanced communications technology has created a myriad of legal questions for public employers. Foremost among these issues is whether employers have the right to access emerging technologies such as voice and electronic mail messages generated or received by their employees. Employer monitoring of and access to voice and electronic mail, pagers, and text messages present significant employment privacy issues. Because it is common for employees to use employer issued communications devices, such as cellular telephones and computers, to send both personal and business-related messages, a host of legal questions arise. While most employers will block employees from accessing harmful materials on the Internet via the employer network, including access to social networking sites, it is important that employers also educate their employees about appropriate and responsible behavior online during off duty hours. Employees should also be on notice via written guidelines about the consequences of inappropriate off-duty Internet behavior. Employer guidelines help educate employees about the importance of responsible behavior online.

Employers must be aware of federal and state authorities that protect electronic communications. This section provides an overview of these laws.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 132