Privacy Issues in the Workplace

As noted previously, in 1994, in Hill v. NCAA , the California Supreme Court adopted a new “balancing test” approach for analyzing state constitutional privacy claims. This standard is less stringent than the “compelling interest” standard, which under Hill , only applies in limited circumstances. Neither the precise scope of each of these standards, nor the extent of an employee’s privacy rights in a workplace setting are entirely settled. The result may depend on the public interest, the employer’s special interests, and the employees’ reasonable expectations of privacy in a particular employment setting.

Ortega v. O’Connor The Ninth Circuit Court of Appeals held that a public employee’s Fourth Amendment rights were violated when his office was searched without a warrant and personal materials were seized in response to vague and very old allegations of sexual misconduct. 418 Dr. Magno Ortega held the position of Chief of Professional Education at Napa State Hospital from 1964 to late 1981. In 1981, he purchased a new computer to be used in his program by obtaining donations and contributing approximately half the cost of the computer himself. Based on concerns regarding the computer purchase, the hospital began an investigation into Ortega’s management practices. During the investigation, it was alleged by a staff psychiatrist that Dr. Ortega had engaged in sexual harassment of resident physicians. Subsequently, Ortega’s office was searched without a warrant. The documents searched and read included personal letters from friends and family, as well as sexually explicit letters from several women. Personal possessions as well as state property were boxed and removed. Based on the investigation, Ortega was fired. He filed a complaint in 1982 under Title 42 United States Code section 1983, alleging violations of his Fourth Amendment rights to be free from unreasonable search and seizures. This lawsuit eventually reached the United States Supreme Court becoming the seminal case on employee privacy rights in the workplace. 419 After the case was remanded to the District Court for further proceedings, a jury found in favor of Ortega, awarding him $376,000 in compensatory damages plus punitive damages. Another appeal followed, extending the length of this litigation to approximately sixteen years. The Court of Appeals affirmed. 420 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.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 124