Privacy Issues in the Workplace

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.

D. A PPLICABLE F EDERAL L AW

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. 433 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. The question of whether an employee had a reasonable expectation of privacy in the workplace is resolved by examining whether the individual challenging the alleged intrusion had a subjective expectation of privacy which was objectively reasonable. If such an expectation is established, the inquiry then moves to the remaining issues raised by the Fourth Amendment. In Haynes v. Office of the Attorney General Phill Kline, 434 Plaintiff was terminated from the position of assistant attorney general and sued the state Attorney General’s Office and several co-workers seeking damages and injunctive relief from accessing his private files on his work computer contrary to his Fourth and Fourteenth Amendment rights and in violation of federal law. The District Court held that the plaintiff sufficiently alleged he had a subjective expectation of privacy in private files stored on his work computer, and that the expectation was objectively reasonable under the Fourth Amendment, so as to show likelihood of success on the merits in his claim for a preliminary injunction precluding his former employer from accessing, copying, reading, reproducing, disseminating, or otherwise searching his private files and e-mail communications.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 138