Privacy Issues in the Workplace

G. G UIDELINES F OR E LECTRONIC C OMMUNICATIONS IN THE W ORKPLACE Employers have legitimate reasons for ensuring that their electronic communications systems are not abused by employees. In California, courts would likely find that an employee does not have a reasonable expectation of privacy when he or she has given written consent to monitoring of the employer’s computers and electronic system. 473 For this reason, employers must have a written Electronic Communications Resources Policy that puts employees on notice of the following:  Electronic communications such as voicemail, e-mail and/or systems accessible via the Internet are the employer’s property and should only be used for legitimate business purposes during working hours. This prohibition is not meant to interfere with an employee’s right to organize or discuss the terms and conditions of his/her employment with others during nonworking hours through the use of employer email systems.  The employer reserves the right to monitor any of its electronic communications systems (including voicemail, e-mail, and the Internet) to assure that its property is being used for business purposes only during working hours and to prevent any unlawful or improper use.  Employees do not have a personal privacy right in any matter created, received, stored in or sent to an electronic system, maintained by the employer. It is important to note that a recent NLRB decision recognized the right of employees to engage in Section 7 activities during non-working hours through the use of an employer’s email system unless special circumstances justify a business use only restriction. 474 Special circumstances in support of a total ban on non-business emails during non-working hours require a showing that the restriction is necessary to maintain production or discipline. 475 An employer may also institute controls on the use of non-business emails during non-working hours when the controls are applied uniformly and consistently enforced to the extent they are necessary to maintain production and discipline. 476 1. “A TTORNEY -C LIENT C OMMUNICATIONS ” S ENT T HROUGH W ORK E-M AIL In a decision entitled Holmes v. Petrovich Development Company 477 , a California Court of Appeal held that e-mails sent by an employee to her attorney regarding possible legal action against her employer did not constitute confidential attorney client communications because the employee used the employer’s computer even though (1) she had notice of the employer’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had notice that the company would monitor its computers for compliance with the employer’s policy, and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message." The employer was thus entitled to introduce the emails as exhibits in the employee's trial of her discrimination and harassment lawsuit against the employer.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 152