Privacy Issues in the Workplace

 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. Holmes worked for Petrovich Development as the Executive Assistant to Paul Petrovich, the Company principal. One month after her hire she advised Petrovich that she was pregnant. A series of exchanges between Petrovich and Holmes took place over the next several weeks until she resigned and subsequently claimed that she had been constructively discharged. Eventually she sued the company alleging sexual harassment, retaliation, wrongful termination, violation of public policy, violation of the right to privacy and intentional infliction of emotional distress. The company obtained summary adjudication on three of Holmes' claims and obtained a jury verdict in its favor on the remaining claims which went to trial. Prior to Holmes' resignation she had exchanged emails with her attorney seeking advice on her rights, specifically related to pregnancy discrimination. She used the company computer and email system. The company later accessed and read these emails and actually used some of them as exhibits in the subsequent jury trial. Holmes attempted to prevent the introduction of the emails into evidence and sought a court order demanding the return of the emails as privileged

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