Privacy Issues in the Workplace

Even if a search does not violate an employee’s right to privacy, this does not always mean that the information or “evidence” obtained in such a search can be used. In some situations, there are other considerations that preclude use of information obtained in the course of a lawful search. Thus in People v. Jiang (originally published at 131 Cal.App.4 th 1027, but subsequently ordered to be not officially published) the trial court found that information stored on a laptop computer provided by a criminal defendant’s employer was not protected by the attorney-client privilege because the employee-defendant had no reasonable expectation of privacy as to that information. The basis for the trial court’s ruling was the employer’s written computer use policy that advised the employee-defendant that information stored on the computer remained that of the employer and was subject to inspection. The employee even signed the policy affirmatively acknowledging that he had no reasonable expectation of privacy in any information he placed on the computer. The information in question included notes and other materials the employee prepared for and with his attorney in connection with the criminal charges filed against him. The Court of Appeal reversed holding that notwithstanding the employee’s lack of any reasonable expectation of privacy, the information in question was protected from disclosure by the attorney-client privilege. Jiang is not citable authority because of the California Supreme Court’s order that it not be published. However, the Court of Appeal’s ruling is consistent with authorities across the country that seem to uphold the application of privileges to material otherwise found to be not private. City of Ontario v. Quon 421 The United States Supreme Court unanimously found that the City of Ontario’s Search of its employee text messages on a City provided pager was reasonable and did not violate the employee’s Fourth Amendment Rights. The City of Ontario contracted with Arch Wireless to provide alphanumeric text- messaging pagers to members of the Police Department’s Special Weapons and Tactics (SWAT) Team. The City intended the pagers to help the SWAT employees mobilize and respond to emergency situations. The Arch Wireless network and equipment transmitted and archived messages received and sent by the employees on Arch Wireless pagers. The text messages did not pass through the City's computers, and thus, the City did not have access to the content of the messages. Under the City’s contract, each pager was allotted a limited number of characters per month. The City was billed overage charges for each pager that exceeded the monthly allotted character amount. While the City did not have a written policy concerning the use of text-messaging pagers, it did have a general “Computer Usage, Internet and E-mail Policy” (“the policy”) that put all employees on notice that City-owned computers and equipment were to be used solely for City related business. The City told

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