Privacy Issues in the Workplace

The Court of Appeals affirmed. 422 The Court held that the search and seizure of the personal materials would only be lawful in the context of a search regarding allegations of sexual misconduct. The type of materials taken from Ortega’s office, i.e., truly private papers or communications, lie at the core of the First and Fourth Amendment. The allegations of sexual harassment were so old and vague that they could not serve as a basis for reasonable suspicion warranting a search of the employee’s private office, let alone such an intrusive search of his personal materials. Moreover, the court held that there was no reasonable suspicion that the evidence of sexual harassment would be found in Ortega’s office. Even if a search does not violate an employee’s right to privacy, this does not always mean that the information or “evidence” obtained in such a search can be used. In some situations, there are other considerations that preclude use of information obtained in the course of a lawful search. Thus in People v. Jiang (originally published at 131 Cal.App.4 th 1027, but subsequently ordered to be not officially published) the trial court found that information stored on a laptop computer provided by a criminal defendant’s employer was not protected by the attorney-client privilege because the employee-defendant had no reasonable expectation of privacy as to that information. The basis for the trial court’s ruling was the employer’s written computer use policy that advised the employee-defendant that information stored on the computer remained that of the employer and was subject to inspection. The employee even signed the policy affirmatively acknowledging that he had no reasonable expectation of privacy in any information he placed on the computer. The information in question included notes and other materials the employee prepared for and with his attorney in connection with the criminal charges filed against him. The Court of Appeal reversed holding that notwithstanding the employee’s lack of any reasonable expectation of privacy, the information in question was protected from disclosure by the attorney-client privilege. Jiang is not citable authority because of the California Supreme Court’s order that it not be published. However, the Court of Appeal’s ruling is consistent with authorities across the country that seem to uphold the application of privileges to material otherwise found to be not private. City of Ontario v. Quon 423 The United States Supreme Court unanimously found that the City of Ontario’s Search of its employee text messages on a City provided pager was reasonable and did not violate the employee’s Fourth Amendment Rights.

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