Privacy Issues in the Workplace

Finkelstein v. State Personnel Board 430 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. 1. R EASONABLE E XPECTATION OF P RIVACY S TANDARD A PPLIES 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. 431 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. D. A PPLICABLE F EDERAL L AW

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