Privacy in the Workplace: Electronic
Surveillance Under State and Federal Law
Charles Lee Mudd Jr. – Mudd Law Offices
© 2010 Mudd Law Offices
Overview
 Trends in Workplace Surveillance
 Highlights of Applicable Law
 More Common Surveillance Issues
 Arbitration - Lessons Learned
 Policy Guidelines
 Novel Circumstances
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Trends in Workplace Surveillance
1997
13.7% of employers monitored computer files
14.9% of employers monitored e-mail
Data obtained from the American Management Association
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Trends in Workplace Surveillance (cont’d)
2007
43% of employers monitored computer files
43% of employers monitored e-mail
Data obtained from the American Management Association
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Trends in Workplace Surveillance (cont’d)
ADDITIONAL STATISTICS
 66% of employers monitor Internet connections
 12% of employers monitor blogs for comments on company
 10% monitor social networking sites
 8% use GPS to track company vehicles
American Management Association DATA
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Trends in Workplace Surveillance (cont’d)
The Privacy Foundation reports that
of those employees "who regularly use e-mail or
Internet access at work,"
fourteen million "are under 'continuous' surveillance
... for their Internet access or e-mail usage."
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Trends in Workplace Surveillance (cont’d)
For a myriad of reasons…
the monitoring of employee activity and
conduct by employers through electronic
surveillance in the workplace
…will continue to increase.
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Protecting Employers … and Employees
With increasing prevalence of workplace surveillance
Employers Must Be Advised Properly…
… in Advance of Implementation
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Highlights of Applicable Law
 United States Supreme Court
 Federal Statutes
 State Statutes
 Common Law
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United States Supreme Court
O'Connor v. Ortega
480 U.S. 709, 107 S. Ct. 1492 (1987)
While investigating alleged impropriety, public employers
broke into employee’s office, desk, and file cabinet
Court determined neither party entitled to summary
judgment and affirmed in part and reversed in part
….HOWEVER….
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Supreme Court (cont’d)
Ortega helped establish:
Analytical Process in Workplace Privacy:
 Expectation of privacy?
 Reasonableness of search at inception?
 Reasonableness of search in scope?
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Supreme Court (cont’d)
For legitimate work-related, non-investigatory
intrusions as well as investigations of work-related
misconduct, a standard of reasonableness is used.
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Supreme Court (cont’d)
City of Ontario v. Quon
177 L. Ed. 2d 216 (U.S. 2010)
The review of transcripts of employee text messages held to
be reasonable given that legitimate non-investigatory
reasons prompted the review.
(to determine whether the character limit on the city's contract was sufficient to meet
the city's needs)
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Supreme Court (cont’d)
Principles arising from and reaffirmed in Quon:
1.
special needs of workplace is an exception to Fourth
Amendment warrant requirement
2. “the extent of an expectation [of privacy] is relevant
to assessing whether the search was too intrusive”
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Supreme Court (cont’d)
Note:
Utah equivalent of Fourth Amendment
Utah Constitution, Art I., § 14
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Federal Statutes
Primarily….
Electronic Communications Privacy Act
Stored Communications Act
Computer Fraud and Abuse Act
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
§ 2511, criminalizes
Intentional interception of oral, wire or electronic
communication
Discloses
Uses
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
Question: What is interception (……still debated…..)
Question: What is electronic communication?
United States v. Councilman, 418 F.3d 67 (1st Cir. Mass. 2005)
United States v. Szymuszkiewicz, 2009 U.S. Dist. LEXIS 60755 (E.D. Wis. June 30, 2009)
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
Civil Remedies
generally any person whose wire, oral, or electronic
communication is intercepted, disclosed, or
intentionally used
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
Relief
 Preliminary, declaratory and other equitable
 reasonable attorney’s fee and costs
 Damages, either (a) actual plus profits OR (b) statutory
($100/day or $10,000)
18 U.S.C. § 2520
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
Employers cannot:
 use any devices to intercept wire, oral, or electronic
communication.
 Use or disclose any information obtained through these
methods
 Disclose or obtain unauthorized access to stored
communications.
Three Exceptions…..
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
Employers cannot:
 use any devices to intercept wire, oral, or electronic
communication.
 Use or disclose any information obtained through these
methods
 Disclose or obtain unauthorized access to stored
communications.
Three Exceptions…..
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
THREE EXCEPTIONS
 If one party has given prior consent.
 Business extension exception – Certain interceptions are
OK in the ordinary course of business.
 Provider exceptions – Certain interceptions OK on
internal communications systems.
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Electronic Communications and Privacy Act
18 U.S.C. § 2510, et seq.
 Consent: requires only that one party to the communication
consent to its interception and access (but be wary of stricter
statutes)
 Providers: employers who own and provide their own e-mail or
instant message systems are exempt
 Not applicable if the interception occurs in the “ordinary course
of business.”
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Stored Communications Act
(18 U.S.C. § 2701)
whoever-(1) intentionally accesses without authorization a facility
through which an electronic communication service is
provided; or
(2) intentionally exceeds an authorization to access that
facility;
AND…..
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Stored Communications Act
(18 U.S.C. § 2701)
thereby obtains, alters, or prevents authorized access to a
wire or electronic communication while it is in
electronic storage in such system shall be punished . .
.
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Stored Communications Act
(18 U.S.C. § 2701)
(REMEMBER - CRIMINAL STATUTES)
Civil Remedy
Very similar to ECPA except minimum statutory of $1,000
Punitive if willful determination
18 U.S.C. § 2707
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Stored Communications Act
(18 U.S.C. § 2701)
18 U.S.C. § 2702
Providers generally cannot disclose contents of
communications except in certain instances
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Stored Communications Act
(18 U.S.C. § 2701)
General Thoughts
Harsher penalties when done for malicious purposes
or commercial advantage
Certain permission creates exceptions
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Stored Communications Act
(18 U.S.C. § 2701)
General Thoughts
Provides exception for “the person or entity
providing a wire or electronic communications
service.”
Thus, courts have been favorable to employers when emails occur on employer-created e-mail servers.
BUT BE WARY…..MISPERCEPTION
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Stored Communications Act
(18 U.S.C. § 2701)
City of Ontario, California v. Quon, et al.
SCA Question:
In storing texts, was Arch Wireless acting as a “remote computing
service” or an “electronic communication service”?
If remote computing service, it could disclose, as subscriber was the
City employer.
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Stored Communications Act
(18 U.S.C. § 2701)
City of Ontario, California v. Quon, et al.
SCA Question:
If electronic communication service, it could not disclose because
the City was not an “originator or an addressee or intended recipient
of such communication.”
This is what Ninth Circuit concluded.
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Stored Communications Act
(18 U.S.C. § 2701)
Impact of Quon on Use of Employer Devices
by Employees will continue….
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Prevents Unauthorized Access or Exceeding Authorized Access
to Computers in
Variety Contexts
-
National Security
Financial Information
Information from Government
Protected Computer
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Protected Computer
Financial Institution or related
Interstate or Foreign Commerce
18 U.S.C. § 1030(e)(2)
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Protected Computer
…… and Causes Damage
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Civil Remedy provision
18 U.S.C. § 1030(g)
Anyone harmed BUT….
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
One of five types of damage
Most Common
(I) loss to 1 or more persons during any 1-year period
(and, for purposes of an investigation, prosecution, or other proceeding
brought by the United States only, loss resulting from a related course of
conduct affecting 1 or more other protected computers)
aggregating at least $5,000 in value;
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Also:
affecting medical examination, diagnosis, treatment, or care
physical injury to any person;
a threat to public health or safety;
damage affecting a computer used by or for an entity of US
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Must be
Unauthorized Access
Exceeding Authorized Access
Key Question….
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Computer Fraud and Abuse Act (CFAA)
(18 U.S.C. § 1030)
Snap-on Business Solutions Inc. v. O'Neil & Assocs., Inc.
(N.D. Ohio April 16, 2010)
(Examined Agreements, question of fact denied MSJ)
LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009)
(access not automatically unauthorized if disloyal)
International Airport Centers, LLC v. Citrin, 440 F.3d 418
(7th Cir. 2006)
(employee who violates duty of loyalty, no authorization)
US v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009)
(violation of TOS not enough)
© 2010 Mudd Law Offices
State Statutes
Utah
Offenses Against Privacy
76-9-403
Privacy Abuse
76-9-403
Communications Abuse
Interception of Communications Act
77-23a-1, et seq.
Access to Electronic Communications
77-23b-1, et seq.
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Utah 76-9-402. Privacy Violation
(1)A person is guilty of privacy violation if,
except as authorized by law, he:
(a)Trespasses on property with intent to subject
anyone to eavesdropping or other surveillance
in a private place; or
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Utah 76-9-402. Privacy Violation
(1)A person is guilty of privacy violation if,
except as authorized by law, he:
(b) Installs in any private place, without the
consent of the person or persons entitled to
privacy there, any device for observing,
photographing, recording, amplifying, or
broadcasting sounds or events in the place or
uses any such unauthorized installation; or
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Utah 76-9-402. Privacy Violation
(1)A person is guilty of privacy violation if,
except as authorized by law, he:
(c) Installs or uses outside of a private place any
device for hearing, recording, amplifying, or
broadcasting sounds originating in the place
which would not ordinarily be audible or
comprehensible outside, without the consent of
the person or persons entitled to privacy there.
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Utah 76-9-403. Communication abuse
(1) A person commits communication abuse if,
except as authorized by law, he:
(a) Intercepts, without the consent of the
sender or receiver, a message by telephone,
telegraph, letter, or other means of
communicating privately;
[Illinois legislation]
© 2010 Mudd Law Offices
Utah 76-9-403. Communication abuse
[the foregoing paragraph] does not extend to:
(i)
Overhearing of messages through a regularly installed
instrument on a telephone party line or on an
extension; or
(ii) Interception by the telephone company or subscriber
incident to enforcement of regulations limiting use of
the facilities or to other normal operation and use; or
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Utah 76-9-403. Communication abuse
(b) Divulges without consent of the sender or
receiver the existence or contents of any such
message if the actor knows that the message was
illegally intercepted or if he learned of the
message in the course of employment with an
agency engaged in transmitting it.
(2)Communication abuse is a class B misdemeanor.
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Utah 76-9-401. Definitions
(1) "Private place" means a place where one may
reasonably expect to be safe from casual or hostile
intrusion or surveillance.
(2) "Eavesdrop" means to overhear, record, amplify, or
transmit any part of a wire or oral communication of
others without the consent of at least one party
thereto by means of any electronic, mechanical, or
other device.
(3) "Public" includes any professional or social group of
which the victim of a defamation is a member.
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Utah 76-9-401. Definitions
(1) "Private place" means a place where one may
reasonably expect to be safe from casual or hostile
intrusion or surveillance.
(2) "Eavesdrop" means to overhear, record, amplify, or
transmit any part of a wire or oral communication of
others without the consent of at least one party
thereto by means of any electronic, mechanical, or
other device.
(3) "Public" includes any professional or social group of
which the victim of a defamation is a member.
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Interception of Communications Act
77-23a-1, et seq.
Akin to the ECPA
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Access to Electronic Communications
77-23b-1, et seq.
Akin to the SCA
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Common Law
Privacy Torts
Utah
Intrusion Upon Seclusion
Public Disclosure of Embarrassing Private Facts
Misappropriation of Name or Likeness
False Light in Public Eye
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Common Law
Utah
Intrusion Upon Seclusion
(1) 'an intentional substantial intrusion upon the
solitude or seclusion of the complaining party,’
(2) the intrusion 'would be highly offensive to the
reasonable person.'"
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Common Law
Utah - Intrusion Upon Seclusion
Physical intrusion not required
“As the Utah courts explained, although a physical
intrusion may not always be necessary, ‘there must
be something in the nature of prying or intrusion.’”
Barker v. Manti Tel. Co.,
2009 U.S. Dist. LEXIS 819 (D. Utah Jan. 6, 2009)
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Common Law
Utah - Intrusion Upon Seclusion
Publicity Not Required
“Thus, it is that affirmative physical intrusion,
eavesdropping, investigation, examination or prying
that constitutes the tort, not any subsequent sharing
of the information learned in an intrusion.”
Barker v. Manti Tel. Co.,
2009 U.S. Dist. LEXIS 819 (D. Utah Jan. 6, 2009)
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Common Law
Intrusion Upon Seclusion
requires that the complainant have a reasonable
expectation of privacy
and that any violation of that expectation be highly
offensive.
Typically, courts find that employees meet neither
requirement.
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Common Law
Intrusion Upon Seclusion - General Observations
Any employer policy that notifies an employee that there is no
expectation of privacy is likely to be sufficient.
Judges rarely find that systematic measures taken by a business
to protect its interests to be offensive.
Courts rarely find that the degree of intrusion outweighs the
interest of an employer.
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More Common Surveillance Issues
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Email Monitoring - ECPA
Emails considered “communications” by the ECPA
Steve Jackson Games, Inc. v. United States Secret Service
816 F. Supp. 432 (W.D.Tex. 1993), aff'd, 36 F.3d 457
(5th Cir. 1994)
Reading and deleting messages stored on employee’s computer
was not an interception under the Wiretap Act.
Generally, for an employee to sue under the ECPA, the email
must be intercepted while being transferred
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Email Monitoring - SCA
Provides exception for “the person or entity
providing a wire or electronic communications
service.”
A court has held that employers whose computer
terminals and software were integral in the
communications systems fell under this exception
Many other cases have also allowed access under this
theory
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Email Monitoring - Common Law
One MA case allowed invasion of privacy claim to go
forward where
Employees could choose own passwords, no policy
against personal emails, and the supervisor spent 8
hours reading through emails
Most challenges have not been successful
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Email Monitoring - Cases
Thygeson v. Bancorp
The court denied claim holding that
"when, as here, an employer accesses its own computer network
and has an explicit policy banning personal use of office
computers and permitting monitoring, an employee has no
reasonable expectation of privacy.”
2004 U.S. Dist. LEXIS 18863, 2004 WL 2066746 at *21 (D. Or.
Sept. 15, 2004)
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Email Monitoring - Cases
Recently cited in Idaho case
Alamar Ranch, LLC v. County of Boise, 2009 U.S.
Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009)
In discussion of attorney-client privilege, also citing
Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist.
LEXIS 28149 (D.N.J. May 9, 2006)
Where attorney-client privilege lost . . .
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Email Monitoring - Cases
Where attorney-client privilege lost . . .
because
the company policy clearly informed employees that
emails would be "subject to monitoring, search or
interception at any time . . . ."
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Email Monitoring - Cases
Smyth v. Pillsbury Co.,
914 F. Supp. 97, 101 (E.D. Pa. 1996)
The Court concluded that an employee did not have a
reasonable expectation of privacy in a company's email system despite company assurances that e-mails
would "remain confidential and privileged.”
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Email Monitoring - Cases
Smyth v. Pillsbury Co.,
914 F. Supp. 97, 101 (E.D. Pa. 1996)
“Once plaintiff communicated the alleged
unprofessional comments to a second person
(his supervisor) over an e-mail system which
was apparently utilized by the entire
company, any reasonable expectation of
privacy was lost.”
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Email Monitoring - Email Cases
Cole v. Zavaras,
349 Fed. Appx. 328 (10th Cir. Colo. 2009)
(approving conclusion by district court that no legal
authority exists for the proposition that there is a
reasonable expectation of privacy in e-mails sent to a
stranger over the Internet, or that the person to
whom the e-mails are directed may not disclose
them)
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Email Monitoring - Email Cases
United States v. Perrine
518 F.3d 1196 (10th Cir. Kan. 2008)
citing a number of cases regarding privacy of subscriber
information and…
United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)
("Individuals generally possess a reasonable expectation of
privacy in their home computers. . . . They may not, however,
enjoy such an expectation of privacy in transmissions over the
Internet or e-mail that have already arrived at the recipient.").
© 2010 Mudd Law Offices
Email Monitoring - Other Considerations
Can be used as evidence in cases
Inappropriate emails could be harassment in and of
themselves.
National Labor Review Board
If employees are unionized, the bargaining agreement
may restrict an employer’s ability to monitor email.
© 2010 Mudd Law Offices
Instant Messaging
Same basic legal rules apply as apply to e-mails.
Especially if the IM service is provided by the employer.
Difference if using AOL, Google, or MSN programs:
Higher expectation of privacy, but this can be reduced
through policies
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Instant Messaging
Best option is to address IMs within policy that
discusses email and other communications
How/when/why IM-ing is allowed
Clearly notify employees if there is a policy of storing
or reviewing instant messages.
© 2010 Mudd Law Offices
Monitoring Web Usage
Not a “communication” under ECPA, making it easy to
regulate.
If an employee wants to challenge monitoring of Internet
usage, it must be done under common law
Likely “intrusion upon seclusion” invasion of privacy.
Not much case law on this. Typically hard to claim, especially
if logged on to an employer’s network or if an employer’s
written policy is in use.
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Monitoring Web Usage
Still grounds that have not fully been covered
Logging in from a remote location (home computer,
for example)
One search was ok in CA appeals because the computer was
issued by work and employee signed an electronic
equipment policy establishing no expectation of privacy.
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Monitoring Web Usage
Still grounds that have not fully been covered
Obligation to third parties to monitor and stop
inappropriate online action that could harm third
parties?
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Blogging
Statutory concerns
Blog-related discipline may not be used to retaliate
against the employee’s statutory rights.
If an employer's behavior has a disparate impact upon
a protected class of employees, or employees are
treated differently, i.e. subjected to disparate
treatment, Title VII of the Civil Rights Act is
applicable
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Blogging
Statutory concerns
Whistle blowing or discussing terms of employment
are protected.
Blogs advocating employee activity to improve terms
and conditions of employment might also be
protected under the National Labor Relations Act.
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Blogging
Common solution: Have an employee blogging policy
May not be able to limit off-duty blogging
Limit blogging on company equipment
If employees note themselves as employees on the blog, require a
disclaimer
Prohibit mentioning clients, customers, etc without their consent
Notify of any practice of monitoring blogs.
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Blogging
It is difficult to prevail under a tort theory of privacy
since blogs are posted online for anyone to view.
Thus absent any federal or state statutory
protections, employers can terminate, at will,
employees whose blogs they dislike.
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Blogging
Termination Examples
A former Delta Airlines flight attendant says she was
terminated for her blog, Diary of A Flight Attendant.
Posing in her Delta uniform in an empty plane, Ellen
Simonetti says she was terminated for placing
"inappropriate" pictures on the Web.
© 2010 Mudd Law Offices
Blogging
Termination Examples
Michael Hanscom, a temporary Microsoft employee,
was fired in 2003 by Microsoft for photos posted on his
blog, eclecticism. At the site, Hanscom took a picture
of several Apple G5 notebooks being unloaded on a
loading dock
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Blogging
Termination Examples
A high profile Washington, D.C. blogging termination
involved Jessica Cutler, then a staff assistant to Senator
Mike DeWine. Cutler was terminated after blogging
about her sexual exploits with various Washington
politicians. Jessica was terminated for "misusing an
office computer.
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
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Arbitration Development
Union guidelines brought arbitration into the field
of employee surveillance.
Present day labor arbitrators have confronted issues
with employee surveillance and technological
developments.
This method is being relied on more heavily as the
disputes become more frequent.
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Suggested Guidelines
Right to affirmatively refuse monitoring;
Notice of monitoring;
Notice of the particulars of the monitoring;
Notice of infractions related to the use of new
technology;
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Arbitration - Lessons Learned
Suggested Guidelines
Notice of resulting discipline for those infractions;
Consistent enforcement of policies relating to
technology;
Confidential review of information discovered through
monitoring;
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Arbitration - Lessons Learned
Suggested Guidelines
Limited collection of information through
technological monitoring;
Reasonable suspicion of an infraction before
monitoring;
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Arbitration - Lessons Learned
Suggested Guidelines
Assessment of the accuracy and reliability of the
information produced by the monitoring;
Compensation for a violation of privacy; and
Restrictions on discipline imposed based on information
gathered as a result of monitoring.
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Arbitration - Lessons Learned
Monitoring Personal Use of Computers
Forbidding personal use is out of sync with modern
workplace reality
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Monitoring Personal Use of Computers
Right to Privacy When Using Computer for Personal Reasons
Some arbitrators - employees have a right to privacy in their computer
usage.
Others - e-mails are not private unless employer policy explicitly says so.
Many employees believe their communications will be private and if
viewed, they would not be disciplined for their contents.
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Monitoring Personal Use of Company Computers
Nonetheless…..Some Uses Can Be Prohibited
An employer has a legitimate business interest in
prohibiting certain computer uses that are likely to
negatively impact the business or workplace.
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Arbitration - Lessons Learned
Monitoring Personal Use of Company Computers
Nonetheless…..Some Uses Can Be Permitted
Illegal conduct….
downloading images of child pornography
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Arbitration - Lessons Learned
Monitoring Personal Use of Company Computers
Nonetheless…..Some Uses Can Be Permitted
Illegal conduct….
defamatory communication
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Monitoring Personal Use of Company Computers
Nonetheless…..Some Uses Can Be Permitted
Illegal conduct….
offensive images of a racial or sexual nature, or that
result in racial or sexual harassment
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Notice of Use
Provides an important safeguard for employees' right
to privacy
Does Not Interfere With Ability to Monitor
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Surreptitious Surveillance, when is it appropriate?
Documentary evidence obtained through a
nonconsensual search is appropriate "so long as the
methods employed are not excessively shocking to the
conscience of a reasonable person....”
Another case suggests that surreptitious monitoring is
appropriate when there is a known violation but no
knowledge of who has engaged in the violation.
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Surreptitious Surveillance, when is it appropriate?
When there is a reasonable suspicion that a violation
of company policy has taken place.
© 2010 Mudd Law Offices
Arbitration - Lessons Learned
Surreptitious Surveillance, when is it appropriate?
Employers should give notice:
Type of conduct that will constitute an infraction and the
level of discipline for each infraction.
Monitoring will take place when the employer has a
reasonable suspicion of an infraction.
Monitoring system that will be used.
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Policy Guidelines
We have discussed various items for a policy….
….presumes the need for a policy.
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Novel Issues
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Novel Issues - Text Messages/Smart Phones
City of Ontario v. Quon United States Supreme Court (2010)
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Novel Issues - Video Surveillance
Hernandez v. Hillsides, Inc., Supreme Court of California (2009)
Secret camera placed in an office shared by 2 female employees
without notice to them. Intended to find identity of person
using their office after closing to view pornographic materials.
The camera was not operated during business hours and
plaintiffs' activities were not viewed or recorded
© 2010 Mudd Law Offices
Novel Issues - Video Surveillance
Hernandez v. Hillsides, Inc., Supreme Court of California (2009)
Reasoning
Expectation of privacy?
Yes. Less because the office is shared.
Reasonableness in inception and in scope?
Actual surveillance was drastically limited in nature and
scope, exempting plaintiffs from its reach, and defendants
were motivated by strong countervailing concerns.
© 2010 Mudd Law Offices
Novel Issues - Phone Surveillance
Narducci v. Moore (7th Cir. 2009)
Defendants worried about threats from residents to finance officials
(calls usually due to residents not paying utility bills) and about
employees making personal calls on village time and using village
phones.
No calls were ever actually reviewed
© 2010 Mudd Law Offices
Novel Issues - Phone Surveillance (cont’d)
Narducci v. Moore (7th Cir. 2009)
Rule for justifiable at inception:
When there are reasonable grounds for suspecting that the search will
turn up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a non-investigatory
work-related purpose.
Rule for justifiable in scope:
So long as "the measures taken by the employer are reasonably related
to the search's objective and they are not overly intrusive in light of the
nature of the alleged misconduct."
© 2010 Mudd Law Offices
Novel Issues - Drug Free Workplace Act
41 USC § 701
Only applied to employers who meet qualifications
Must provide notice that drugs are not allowed. Also
must note counseling, rehab, etc. for recovery options.
© 2010 Mudd Law Offices
Novel Issues - Title VI of Civil Rights Act
No-dating policies have been challenged as sex
discrimination.
Dress codes may result in religious discrimination.
© 2010 Mudd Law Offices
Novel Issues - Smoker’s Rights
Most states have laws that prohibit employers from
making employment decisions based on lawful, out of
work activities (marital status, lifestyle, appearance)
Approximately thirty states protect against discipline
for smoking off-duty and away from the employer's
premises
© 2010 Mudd Law Offices
Novel Issues - Pen Registers/Trap & Trace
18 USCS § 3121
Need a court issued warrant.
Exceptions:
relating to the operation, maintenance, and testing of a wire or
electronic communication service or to the protection of the rights
or property of such provider, or to the protection of users of that
service from abuse of service or unlawful use of service;
or
© 2010 Mudd Law Offices
Novel Issues - Pen Registers/Trap & Trace
18 USCS § 3121
Need a court issued warrant.
Exceptions:
to record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider, another
provider furnishing service toward the completion of the wire
communication, or a user of that service, from fraudulent,
unlawful or abusive use of service;
or
© 2010 Mudd Law Offices
Novel Issues - Pen Registers/Trap & Trace
18 USCS § 3121
Need a court issued warrant.
Exceptions:
where the consent of the user of that service has been obtained
© 2010 Mudd Law Offices
Charles Lee Mudd Jr.
Mudd Law Offices
Park City Office
Chicago Office
311 Main Street
Second Floor
P.O. Box 483
Park City, Utah 84060
435.640.1786 Telephone
435.603.1035 Facsimile
cmudd@muddlawoffices.com
3114 West Irving Park Road
Suite 1W
Chicago, Illinois 60618
773.588.5410 Telephone
773.588.5440 Facsimile
cmudd@muddlawoffices.com
© 2010 Mudd Law Offices