Privacy Issues in the Workplace

of their employees for investigations of work-related misconduct, so long as the searches are reasonable in their scope and manner. The Court found insufficient evidence presented by Biby that the search was unreasonably intrusive. In addition, the Court found that Biby had no expectation of privacy in his workplace computer files because University’s policy allowed search of a computer user’s files in order to respond to discovery requests. Clauson v. Superior Court of Los Angeles 452 The appellate court allowed an employee and his family to pursue both punitive damages for alleged invasion of privacy as well as statutory wiretapping and eavesdropping penalties based on the employee’s allegations that his employer installed eavesdropping devices in his office and wiretapped his private office and telephone. Further, the employee alleged that his employer secretly tape- recorded “several hundred telephone conversations” that the employee had with his wife and children and that the taped conversations involved “confidential communications, including private family matters.” McVeigh v. Cohen The employee in this case was able to successfully argue that his employer had unlawfully monitored his Internet access. 453 Timothy McVeigh, who bears no relation to the Oklahoma City bombing criminal, is a naval officer who sought an injunction to prohibit the Navy from discharging him based on his sexual orientation. The Navy began investigating McVeigh’s sexual orientation when a civilian forwarded an e-mail message from McVeigh, sent to her through the America Online Service (AOL), which provided some evidence that McVeigh was homosexual. The Navy then contacted AOL and sought further information about McVeigh in order to determine his sexual orientation. The court held that the Navy’s investigation of McVeigh was illegal under the ECPA since the ECPA only allows the government to obtain information from an online service provider if it (a) obtains a search warrant or (b) if it gives prior notice to the online subscriber and then issues a subpoena or receives a court order authorizing disclosure of the information in question. Accordingly, the court suppressed the evidence since it found that the Navy had unlawfully obtained the information

E. A PPLICABLE C ALIFORNIA L AW California employees claiming that the employer breached his/her privacy rights in monitoring his/her electronic communications may potentially assert: (1) violations of Article I, Section 1 of the California Constitution which specifically protects privacy, (2) intrusion into seclusion under California Civil Code section 1708.8, and/or (3) the tort of invasion of privacy. Additionally, California also has two primary bodies of statutory law that specifically govern employer monitoring of electronic communications.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 138