Employee Privacy in the Workplace, When the Workplace is a Sheriff’s Office
Key Policy Considerations
By
Thomas N. Edmonds, J.D.
Sheriff, Kalamazoo County, Retired
MSA Special Counsel
Introduction:
Recent court cases have underscored the importance of addressing several employee
privacy issues by agency policy and enforcing policy in a fair and consistent manner.
This paper will address the following topics:
Departmentally furnished communication devices e.g. cell phones, PDAs,
etc.
Personally owned communication devices
Employer furnished containers in the workplace e.g. desks, lockers, etc.
Personal searches
Policy drafting and implementing considerations
Privacy in the Workplace, page 2
Departmentally Furnished (Governmentally Owned) Communications Devices:
The critical issue for policy consideration with regard to furnished communication
devices is whether or not personal use will be permitted, and if so, under what specific
circumstances. A Federal Court recently considered the issue of a police officer’s right to
expect privacy in the content of personal communications made on a furnished device
and in a somewhat surprising decision, ruled that the officer had a reasonable expectation
of privacy in the content and recipients of personal communications (sexually explicit
text messages) made on duty on a furnished device.
How so? Because the employer’s policy that was intended to prevent misuse of the
device and control personal use was out of date and not consistently enforced. Quon v.
Arch Wireless Op. Co.
The teaching points from Quon are simply that an agency must have a clear, up to date
policy specifically addressing personal use of furnished communications devices and the
policy must be communicated to all employees and consistently enforced. It should be
noted that permitting personal use is a slippery slope, and probably not necessary in
today’s world where everybody has at least a personal cell phone.
Personally Owned Communications Devices:
The issues for consideration with regard to the on duty and/or on premises use of
personally owned or leased devices are: use on duty; use on duty for work related
business; use while operating a motor vehicle.
Practically speaking, it will be virtually impossible to eliminate on duty use of personally
owned devices in today’s world. At best, policy can and should effectively control use in
the following situations: not during departmental meetings, briefings, citizen
contact/interviews, not for official business and not while operating a motor vehicle.
It has become commonplace to see police officers on their cell phones and even texting
while driving marked police vehicles. Many officers circumvent or supplement the use of
official communications channels by using personally owned devices for official or quasi
official communications about police activity. Three problems arise from this activity;
command and control functions are eroded; critical information is not monitored and
recorded, and distracted driving (and the public perception of a dual standard) result.
Privacy in the Workplace, page 3
Use of “unofficial” communications channels to conduct police business is a common but
dangerous practice. It doesn’t provide the monitoring, controlling and recording functions
that automatically occur in official communications systems. It doesn’t provide the record
of actions taken and the circumstances under which those actions were taken that has
become so critical to defending police actions when they are challenged in court, for
example when a pursuit results in a bystander fatality. Officers should be made to
understand the importance of this factor. Officer safety is compromised, as the dispatch
center is not privy to critical information about police activity.
Also of emerging concern is unauthorized employee use of personal e-mails, blog
postings, etc. to discuss or reveal official communications, official activity, or internal
and confidential policies and/or communications.
Agency should establish policy to address these issues.
Employer Furnished Containers:
“Container” in the context of this discussion includes lockers, desks, filing cabinets,
government owned and furnished computers, briefcases, car glove boxes and trunks.
Courts have consistently found that under certain circumstances, the use by employees to
store personal items in such containers my give rise to a constitutionally protected
expectation of privacy, and in some cases mandated the suppression of drugs, stolen
property, etc.
Sometimes critical managerial needs or emergency circumstances can overcome this
expectation of privacy, but it is best addressed by carefully drafted policy. Two
approaches have emerged in policies designed to address this issue. Some take the route
of attempting to extinguish any expectation of privacy by requiring employees to consent
to the search of such containers and acknowledge that they have no expectation of
privacy as a condition of employment. Others have established a protocol under which
such searches are permitted, specifying among other things who may search, where and
who must approve the search in advance.
It is suggested that a combination of both approaches will best suit a police agency.
Employees should be required to acknowledge and agree to the policy in writing at the
time of initial employment and on a periodic basis (perhaps annually) after that.
Special considerations exist with regard to the monitoring of personal electronic
communications by employees. It is not recommended that an employer by policy of
otherwise, attempt to intercept or monitor an employee’s communications on the
employee’s personal e-mail accounts. Public postings that anyone may legitimately
access can be used as a basis for discipline if they otherwise violate a non-disclosure
policy.
Workplace Privacy, page 4
Communications sent over employer provided e-mail systems can and should be
addressed by policy, as they are legitimately subject to monitoring by the employer.
Policy should address and prohibit misuse of the employer provided e-mail and internet
activity. It would appear that an employer may also monitor and discipline misconduct
arising out of e-mail activity on non-employer provided systems such as Yahoo and
Hotmail if access to the account or system was obtained through the employer’s server
and internet access.
Personal Searches:
If a search of the person of an employee (which would include his/her auto and
containers in his/her possession such as a backpack, purse or briefcase) becomes
necessary to seize or preserve evidence of criminal conduct, then the standard rules of 4th
Amendment law apply. It is possible to justify certain random, non probable cause based
search of the person of an employee if a valid need can be established on the part of the
employer and the employer’s policy permitting such searches has been clearly
communicated to the employee.
There would appear to be little justification on the part of most police agencies for such a
policy except in perhaps unique circumstances such as evidence technicians having
access to drugs, etc. or perhaps property custodians in correctional facilities.
Video Surveillance:
Video surveillance of common areas appears to be legally permitted and in car cameras
have recorded police misconduct which has subsequently been admitted in court.
Employees have been successful in attacking video surveillance in areas where they may
reasonably expect privacy (restrooms, locker rooms, etc) when they were not made aware
of the surveillance.
Employees who have been caught in areas where they were not expected to be, or did not
have authority to be by video surveillance intended to record criminal conduct have been
denied recourse by the courts.
Drafting and Implementing Policy
Experts recognize the “Three Es” of policy: Establish Educate and Enforce”. What they
are saying is critical. You must have a policy before you can enforce it and discipline for
a violation. The courts have said you must communicate your policies clearly and
effectively to your employees before you seek to enforce them. Finally, you must
recognize that neglecting to enforce policy or selective enforcement makes the policy
unenforceable, and that “an exception will eat the rule”; that is to say that an exception
for one is an exception for all, and becomes the new rule.
Workplace Privacy, page 5
Sample or model policies are readily available to address each of these topics. For a very
comprehensive discussion of workplace privacy, complete with sample policies, see
Workplace Privacy Policies by Robert D Brownstone, Esq. a copyrighted paper presented
at the National Employment Law Institute, Public Sector EEO and Employment Law
Conference, August 28, 2009 and available by going to Google and entering “28th annual
public sector EEO” and then clicking on “Workplace Privacy Policies by Robert D.
Brownstone.”