7th Annual Fundamentals of
Employment Law
Sterling Education Services, Inc.
Employee Privacy in the Workplace
Patrick O. Peters, Esq.
Ohio State Bar Association Certified Specialist in Labor & Employment Law
January 18, 2011
Cleveland | Columbus | Indianapolis | Philadelphia | Shanghai | White Plains | Wilmington
www.beneschlaw.com
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
• The Risks and Rewards of
Monitoring Employee Internet Use
and Social Networking
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
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Social Networking:
Facebook, LinkedIn, Twitter, YouTube, Flickr, MySpace,
blogs, message boards, etc.
Facebook supports more than 500 million active users.
Average Facebook user is connected to 80 community
pages, groups and events, and has 130 friends.
More than 1 million websites have integrated with the
Facebook platform.
LinkedIn reports over 70 million members, with
approximately half of the members outside the U.S.
A new member joins LinkedIn approximately every second.
Executives from all Fortune 500 companies are members of
LinkedIn.
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
• Treasure Trove in Litigation
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Informal recommendations
Current employment, employment history
Photographs
Description of physical activities
Identification of potential witnesses
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
• Considerations for Monitoring
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How access obtained
Is the account public or private
Is the content legally protected
After monitoring, then what?
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
• Legal Risks of Monitoring
• Invasion of privacy
• Concerted activity
• National Labor Relations Act – protects
employees’ use of email for “concerted
activity,” including for purposes of
“mutual aid or protection.”
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
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Email to COO that was critical of the employer’s changes to
vacation policy was in pursuit of mutual aid or protection (of
the former policy and of the other employees) even where
“unpleasantries” were uttered. Timekeeping Systems, Inc. v.
Lawrence Leinweber, 323 NLRB No. 30 (1997).
Email rule prohibiting employees from using employer’s email
system to distribute union literature held to be discriminatory
where employer allowed employees to use email system to
distribute materials about all other topics, and for matters that
had nothing to do with the employer’s business. E.I. du Pont
de Nemours and Co., 311 NLRB 893 (1993).
NLRB has sued American Medical Response of Connecticut
alleging that the employer violated the NLRA by terminating
an employee for criticizing her supervisor on Facebook and by
maintaining and enforcing an overly broad blogging and
internet posting policy. Hearing set for January 25, 2011.
Whose Computer Is It? Employer’s Right To
Monitor E-Mail
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Federal Wiretap Act, Electronic
Communications Privacy Aact & similar
state laws
Whistleblower protection
Lawful off duty-activity
Political affiliation/activity
Information Disclosure
• Right to Privacy
• U.S. Constitution
• Primarily applicable to public employees
although, in some circumstances, may also be
applicable to private employers. The U.S.
Supreme Court has recognized a right to
privacy in the Bill of Rights. Courts use a
balancing test to weigh the invasion of an
employee’s legitimate expectations of privacy
against a public employer’s need for
supervision, control, and efficient operation of
its workforce.
Information Disclosure
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Ontario v. Quon, 130 S.Ct. 2619 (2010)
The Supreme Court dodged the broader
question of whether one has a reasonable
expectation of privacy in electronic
communications, narrowly holding that
there was no violation of privacy where
messages on government-owned pager
were reviewed and employee disciplined
for personal use on duty.
Rejected 9th Circuit Court’s reasoning that
employer must use least intrusive means of
searching
Information Disclosure
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Balancing test weighs privacy interests of employee versus
legitimate business interests of the company:
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“I just don’t know how you tell what is reasonable,” Chief
Justice John G. Roberts, Jr. said. “I suspect it might change
with how old people are and how comfortable they are with
technology.”
“I think if I pay for it, it’s mine and not the employer’s.”
Justice Stephen G. Breyer said that a certain amount of
personal texting was to be expected. “You want to let them
have a few,” Justice Breyer said. “You need pizza when you
are on duty.”
Chief Justice Roberts warned against devising a legal rule that
“would require people basically to have two of these things
with them, two of whatever they are – the text messenger or
the BlackBerrys or whatever.”
The harder question, several justices suggested, was that of the
privacy of the people with whom Sergeant Quon
communicated.
Information Disclosure
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U.S. v. Warshak, 6th Cir. Nos. 08-3997/4085/4087/4212/4429; 09-3176
(Dec. 14, 2010)
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Although not an employment case, the Sixth Circuit recognized that
individuals enjoy an objectively reasonable expectation of privacy in their
commercially-stored email accounts:
“Since the advent of email, the telephone call and the letter have waned in
importance, and an explosion of Internet-based communication has taken place.
People are now able to send sensitive and intimate information, instantaneously to
friends, family, and colleagues half a world away. Lovers exchange sweet
nothings, and businessmen swap ambitious plans, all with the click of a mouse
button. Commerce has also taken hold in email. Online purchases are often
documented in email accounts, and email is frequently used to remind patients
and clients of imminent appointments. In short, “account” is an apt word for the
conglomeration of stored messages that comprises an email account, as it
provides an account of its owner’s life…”
“Email is the technological scion of tangible mail, and it plays an indispensable part
in the information Age. Over the last decade, email has become ‘so pervasive
that some persons may consider [it] to be [an] essential means or necessary
instrument [] for self-expression, even self-identification.’ … It follows that email
requires strong protection under the Fourth Amendment …”
Information Disclosure
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Ohio Common Law
Ohio recognizes four separate invasion of privacy torts: (1)
the unwarranted appropriation or exploitation of one’s
personality, (2) the publicizing of one’s private affairs with
which the public has no legitimate concern, (3) the
wrongful intrusion into one’s private activities, and (4) the
“false light” theory.
Under the false light theory, it is a tort to give “publicity to a
matter concerning another that places the other before
the public in a false light … if (a) the false light in which the
other was placed would be highly offensive to a
reasonable person, and (b) the actor had knowledge of or
acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other
would be placed.” Welling v. Weinfeld, 113 Ohio St.3d 464,
866 N.E.2d 1051, 2007-Ohio-2451.
Information Disclosure
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Exampled of acts that have resulted in successful invasion of
privacy claims in Ohio:
Employer spied on employee by having a supervisor hide in the
ceiling of the restroom to conduct surveillance of the employee.
Employer’s search of employee’s motel room for stolen book,
based on good faith belief that employee had taken the book,
constituted actionable invasion of privacy.
Examples of acts that the Ohio courts have held do not
constitute an invasion of privacy:
Drug testing of employee or prospective employee has been held
not to constitute an actionable invasion of privacy.
Employer, in response to a subpoena, sent employee’s husband’s
attorney a report concerning employee’s conversations relating
to sexual conduct involving children. Court held that this was not
an actionable invasion of privacy as the employer was merely
reporting conversations the employee held with other employees.
Information Disclosure
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Balancing test weighs the privacy interests of the employee against
the legitimate business interests of the company.
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An employer’s search of company-issued laptop to protect confidential
information was not highly offensive, even where the employee could
purchase the laptop upon leaving the company. Hilderman v. Enea TekSci,
Inc., 551 F.Supp.2d 1183 (S.D. Cal. 2008).
“[A]n employer may monitor when an employee is distracted from the
employer’s business and may take disciplinary action if an employee
engages in personal matters during work hours; that right to discipline or
terminate, however, does not extend to the confiscation of the employee’s
personal communications.” Stengart v. Loving Care Agency, Inc., 973 A.2d
390, 401 (N.J. Super. 2009).
However, policy stating that all communications on the employer’s systems belong
to the employer and that employees should have no expectation of privacy for
any such communications, but permitting “occasional personal use,” is ambiguous.
The Stengart court held that an employee could interpret “occasional personal
use” as suggesting that such communications were distinguishable from businessrelated communications and, in fact, personal, privileged communications. Thus,
the Court held that the employer’s access might not extend to such
communications, even from its own systems.
Information Disclosure
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Employer policies, employee knowledge, and agreements can
destroy the reasonableness of an expectation of privacy.
Merely moving emails to a “personal folder” does not provide a reasonable
expectation of privacy where (1) the emails were transmitted through the
employer’s network, (2) the emails were saved on an employer computer,
and (3) the employer had a policy of monitoring all files and
communications on its equipment. Thygeson v. U.S. Bancorp, 2004. WL
2066746 (D. Or. 2004).
An employee’s knowledge that the company monitors employee emails
destroys an employee’s reasonable expectation of privacy. Bourke v. Nissan
Motor Corp., App No. B068705 (Cal. Ct. App., July 26, 1993).
An announcement by the company that it may search company-issued
equipment at any time destroys an employee’s reasonable expectation of
privacy. Muick v. Glenayre Elec., 280 F.3d 741 (7th Cir. 2002).
An agreement in writing that the employer may search employer-issued
equipment destroys an employee’s reasonable expectation of privacy. TBG
Ins. Servs. Corp. v. Superior Court, 96 Cal. App. 4th 443 (Cal. App. 2d Dist.
2002).
Information Disclosure
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Statutes Implicating Privacy Interests
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Americans with Disabilities Act (“ADA”)
Prohibits employers with 15 or more employees from disseminating
confidential information obtained through medical examinations,
revelations, or inquiries. Such information must be maintained
separately and supervisors should not be given access unless there is a
business-related reason. The ADA also prohibits an employer from
attempting to discover whether an employee has a disability through
personal inquiries or other invasions into an employee’s privacy.
Ohio law also requires an employer to maintain the confidentiality
of employee medical records by keeping such records separate
from personnel records and to disclose medical information to
other employees only on a need-to-know basis.
Medical information obtained pursuant to leave requests under
the Family and Medical Leave Act of 1993 (“FMLA”) also must be
maintained in confidence under the ADA’s confidentiality
provisions as the FMLA allows employers to obtain certain medical
information from employees to support a claim for leave.
Information Disclosure
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The Electronic Communications Privacy Act of 1986
Title I – Wiretap Act
Title II – Stored Communications Act (“SCA”)
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An employer who accessed a former employee’s personal
email account could be held liable for punitive damages and
attorney’s fees under the SCA, even without proof of actual
damages. Van Alstyne v. Electronic Scriptorium Limited, 560
F.3d 199 (4th Cir. 2009).
Pietrylo v. Hillstone Restaurant Group, Dist. No. No. 06-5754,
2009 WL 3128420 (Sept. 25, 2009)
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Restaurant terminated two employees for purportedly damaging
employee morale and violating restaurant’s “core values” by
posting comments and hosting chats about the restaurant’s
management using their MySpace accounts.
Managers accessed employees’ password-protected accounts
five time without authorization. Employees gave managers their
logins and passwords over fears that they would “get into trouble.”
Terminated employees awarded backpay, punitive damages, and
attorney’s fees.
Information Disclosure
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Exceptions relevant to the workplace
Ordinary course of business: Adams v. City of Battle Creek,
250 F.3d 980, 984 (6th Cir. 2001), for the exception to apply,
the use must be:
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For a legitimate business purpose;
Routine; and
With notice.
A conversation involving an employee regarding his
resignation and future employment plans was personal in
nature. Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th
Cir.1983).
Church did not have “business interest” in protecting
minors while listening to a youth ministers’ explicit
homosexual conversation. Fischer v. Mt. Olive Lutheran
Church, 207 F. Supp.2d 914 (W.D. Wis., March 28, 2002).
Information Disclosure
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Service provider exception
In providing a reservations system for travel agents,
American Airlines is a “service provider.” United States v.
Mullins, 992 F.2d 1472 (9th Cir.1992).
A police department could retrieve text messages stored
in its system because the text message system was a
“service provided” by the department. Bohach v. City of
Reno, 932 F.Supp.1232 (D.Nev.1996).
Because an employee’s emails were stored on (and
administered by) the employer’s network, the search of
emails falls within the service provider exception. Fraser v.
Nationwide Mut. Ins. Co., 352 F.3d 107 (3rd Cir. 2003).
Consent exception
Mere knowledge does not equal consent, but a clear
policy, explained in writing, and a written employment
agreement may suffice.
Information Disclosure
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Service provider exception
In providing a reservations system for travel agents,
American Airlines is a “service provider.” United States v.
Mullins, 992 F.2d 1472 (9th Cir.1992).
A police department could retrieve text messages stored
in its system because the text message system was a
“service provided” by the department. Bohach v. City of
Reno, 932 F.Supp.1232 (D.Nev.1996).
Because an employee’s emails were stored on (and
administered by) the employer’s network, the search of
emails falls within the service provider exception. Fraser v.
Nationwide Mut. Ins. Co., 352 F.3d 107 (3rd Cir. 2003).
Consent exception
Mere knowledge does not equal consent, but a clear
policy, explained in writing, and a written employment
agreement may suffice.
Legal Pitfalls to Avoid in Social Media
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Make clear what’s acceptable in the office.
If you’re encouraging staffers to tweet,
blog, etc. as part of their jobs, have specific
guidelines.
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FTC’s Guides Concerning the Use of Endorsements
and Testimonials in Advertising
Bloggers who are paid, directly or indirectly, to
write about a product must disclose such
sponsorship as the FTC considers such posts as
paid endorsements. The companies involved also
should monitor posts for compliance.
Legal Pitfalls to Avoid in Social Media
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Understand privacy issues.
Make sure that employees know what’s
confidential, and keep training them on
what not to disclose.
Make sure that what your company puts
out there is ready for public consumption.
Protect yourself from defamation or
defamation claims.
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Non-disparagement /confidentiality
agreements
Legal Pitfalls to Avoid in Social Media
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Elements to consider in drafting a well-crafted policy:
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Cover all forms of online communication and conduct.
If employees are permitted to access social media at
work, ensure that such access does not interfere with
work.
Clearly express that, when using an employer
computer system, an employee has no expectation of
privacy.
Prohibit employees from revealing confidential or
proprietary information.
Prohibit employees from revealing personal information
of other employees.
Emphasize that online conduct must not violate the
anti-discrimination policy or other codes of conduct.
Legal Pitfalls to Avoid in Social Media
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Elements to consider in drafting a well-crafted policy:
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Warn that the policy must be read in conjunction with
any existing code of conduct, disciplinary scheme, or
existing IT policy.
Prohibit the use of employer logos/uniforms/ brands.
Emphasize that employees must not imply, explicitly or
implicitly, that they represent the company.
Include a catch-all provision prohibiting conduct that
creates a conflict of interest or otherwise harms the
employer's business interests.
Include a catch-all provision prohibiting any conduct
that violates federal, state, or local law.
Direct employees to bring all questions related to the
policy or permissible conduct to management.
Warn about possible disciplinary action if the policy is
violated.
Evaluating Performance
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Background Checks
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55% of respondents to a 2009 CareerBuilders survey said they used
social media in the recruiting process, up from 22% in 2008
70% of U.S. human resources officers said they rejected job
applicants for inappropriate material in online social networking
profiles.
Employers can certainly verify résumé details or look on Facebook
profiles. But if they find information about someone’s religion, marital
status, age, disability or any other protected status and then use that to
make an employment decision, then that’s a potential discriminatory
action.
Employers can decline to hire or dismiss workers for posting photos or
comments, but they can’t do so if the postings are related to union
activities protected by labor laws.
33 states have so-called “lifestyle discrimination” statutes that protect
employees against adverse action based on lawful off-duty conduct
like smoking, consumption of lawful products or political activity.
Charged with knowledge of posted information.
Fair Credit Reporting Act.
Employee Off-Duty Misconduct
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Legal Issues that Arise with Social Networking Websites in the
Workplace
Fired Over Fantasy Football: The Unfortunate Case of Cameron
Pettigrew.
LinkedIn to a Lawsuit
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In a suit filed in Minneapolis’ U.S. District Court, former employer alleged former
employee wrongfully contacted former clients and co-workers—and more
unusually, that her LinkedIn page could prove it.
As case law develops, courts could decide whether the online connections
employees make at work belong to the employee or employer. Courts have a
lot of discretion in deciding whether comparable customer lists and contacts
are trade secrets and whether social-networking activity can be covered by
competitive agreements.
Cleveland Judge Denies Newspaper’s Claim She Commented Online
About Her Cases
British Airways suspends 15 for online comments
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Britain’s largest union says British Airways PLC has suspended 15 cabin crew
members because they allegedly posted inappropriate comments on their
Facebook pages.
Employee Off-Duty Misconduct
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Risks for unwary lawyers
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Specialization
Testimonials
Advertising
12/8/2010 Ohio Supreme Court Advisory Opinion:
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A judge may be a “friend” on a social networking
site with a lawyer who appears as counsel in a case
before the judge, but the Opinion cautions: “As with
any other action a judge takes, a judge’s
participation on a social networking site must be
done carefully in order to comply with the ethical
rules in the Code of Judicial Conduct.”
Employee Off-Duty Misconduct
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Among the restrictions the opinion noted judges must
observe:
To comply with Jud. Cond. Rule 1.2., a judge must maintain
dignity in every comment, photograph, and other
information shared on the social networking site.
To comply with Jud. Cond. Rule 2.4(C), a judge must not
foster social networking interactions with individuals or
organizations if such communications erode confidence in
the independence of judicial decision making.
To comply with Jud. Cond. Rule 2.9 (A), a judge should not
make comments on a social networking site about any
matters pending before the judge – not to a party, not to a
counsel for a party, not to anyone.
To comply with Jud. Cond. Rule 2.9 (C), a judge should not
view a party’s or witnesses’ pages on a social networking
site and should not use social networking sites to obtain
information regarding the matter before the judge.
Employee Off-Duty Misconduct
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Among the restrictions the opinion noted judges must observe:
To comply with Jud. Cond. Rule 2.10, a judge should avoid making
any comments on a social networking site about a pending or
impending matter in any court.
To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should
disqualify himself or herself from a proceeding when the judge’s
social networking relationship with a lawyer creates bias or
prejudice concerning the lawyer or party. There is no bright-line
rule: not all social relationships, online or otherwise, require a judge
disqualification.
To comply with Jud. Cond. Rule 3.10, a judge may not give legal
advice to others on a social networking site.
The opinion concluded: “To ensure compliance with all of
these rules, a judge should be aware of the contents of his or
her social networking page, be familiar with the social
networking site policies and privacy controls, and be prudent
in all interactions on a social networking site.”
Questions, Comments, Discussion
Thank you!
Patrick O. Peters
OSBA Certified Specialist in Labor & Employment Law
Benesch, Friedlander, Coplan & Aronoff LLP
200 Public Square, Suite 2300
Cleveland, Ohio 44114-2378
(216) 363-4434
ppeters@beneschlaw.com
As a reminder this presentation is being delivered to draw your attention to issues and is not to replace legal counseling.
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