Privacy Issues in the Workplace

correspondence that was subject to his right of privacy under California’s constitution. The Court of Appeal ruled in favor of the employer holding that the employee did not have a reasonable expectation of privacy because he consented to the employer’s monitoring of his computer activities by signing the employer’s computer use policy. 467 Moser v. Las Vegas Metropolitan Police Department 468 This case involved a SWAT sniper who commented on a friend’s Facebook post which linked to an article about a 2015 shooting of a police officer where the suspect was later arrested. He wrote, “It’s a shame he didn’t have a few holes in him.” An anonymous tip came in about the post, there was an internal investigation, and the officer was transferred out of SWAT and put back on patrol. The department felt that his comment showed he had become “a little callous to killing.” The SWAT sniper filed a lawsuit against the department alleging they had retaliated against him for speech protected under the First Amendment. The court in Moser analyzed the test the U.S. Supreme Court developed to address public employee First Amendment claims against their employers: (a) the employee spoke on a matter of public concern; (b) the employee spoke as a private citizen rather than a public employee; and (c) the employee’s speech was a substantial factor in discipline. If the employee makes this showing, the burden shifts to the employer to demonstrate that its legitimate administrative interests outweighed the employee’s First Amendment rights. If the employer cannot meet its burden, then the First Amendment will protect the plaintiff’s speech. Applying this test, the court in Moser found that the employee met his burden because: (1) the SWAT sniper’s comment addressed an issue of public concern in that it was about a political, social or another concern to the community or was the subject of legitimate news interest; (2) the SWAT sniper’s made his comments as a private citizen and not a public employee because he was at home, off-duty and used his personal Facebook account; and (3) he was transferred out of SWAT because of his Facebook post. In Moser , the court held that it could not balance the employer’s administrative interests against the employee’s First Amendment rights because of two factual disputes. First, it found there was a factual dispute over what the Facebook comment objectively meant. The police department contended it advocated unlawful violence by law enforcement. Under the department’s interpretation, the Facebook comment would not have needed the highest level of First Amendment protection. However, the employee argued he did not advocate unlawful violence, but instead expressed frustration at the perils police officers face. Under the employee’s argument, his Facebook post would be entitled to

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