Privacy Issues in the Workplace

According to the United States Supreme Court in O’Connor v. Ortega , work-related intrusions by public employers may be justified by the governmental interest in the efficient and proper operation of the workplace. 435 With respect to investigations of work-related misconduct, the O’Connor Court stated that:

Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practice and procedures, or by legitimate regulation. . . . Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement or other work-related misfeasance of its employees. 436

Employers do not have the right to eavesdrop on an employee’s private telephone conversations. However, as explained below in greater detail, employers do have the right to control and monitor their electronic communications resources. To do so, employers must put their employees on notice by adopting a written policy that includes specific language advising employees that all electronic communications, including e-mail and text messages, sent and received on the employer’s equipment, including cellular telephone, pagers, and other electronic devices are the employer’s property and are subject to monitoring. Moreover, employers must consistently apply their written policy.

2. F EDERAL S TATUTES P ROHIBIT I NTERCEPTION OF E LECTRONIC T RANSMISSIONS

The Federal Crime Control and Safe Streets Act of 1968 (Wiretap Act) 437 makes it illegal to intentionally intercept any wire, oral or electronic communication without consent. The Electronic Communications Privacy Act (ECPA) of 1986 amended the 1968 Wiretap Act. It prohibits intentional interception of electronic communications and disclosure or use of intercepted electronic communications during transmission (before the communication is open or stored). 438 It requires the presence of some federal nexus in its application (such as “the defendant acting under the color of state law or the recordings made through facilities of a communication carrier engaged in the transmission of interstate or foreign communications”) to be constitutional as applied. 439 The ECPA also created the Stored Communications Act (SCA), which prohibits intentional and unauthorized access of a facility providing electronic communication service to obtain “access to a wire or electronic communication while it is in electronic storage in such system.” 440 The SCA also prevents “providers” of communication services from divulging private communications to certain entities and/or individuals. 441 The SCA provides privacy protection to communications held by two types of providers: electronic communication service (ECS) and providers of remote computing service (RCS).

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 139