Privacy Issues in the Workplace

The question of whether an employee had a reasonable expectation of privacy in the workplace is resolved by examining whether the individual challenging the alleged intrusion had a subjective expectation of privacy which was objectively reasonable. If such an expectation is established, the inquiry then moves to the remaining issues raised by the Fourth Amendment. In Haynes v. Office of the Attorney General Phill Kline, 432 Plaintiff was terminated from the position of assistant attorney general and sued the state Attorney General’s Office and several co-workers seeking damages and injunctive relief from accessing his private files on his work computer contrary to his Fourth and Fourteenth Amendment rights and in violation of federal law. The District Court held that the plaintiff sufficiently alleged he had a subjective expectation of privacy in private files stored on his work computer, and that the expectation was objectively reasonable under the Fourth Amendment, so as to show likelihood of success on the merits in his claim for a preliminary injunction precluding his former employer from accessing, copying, reading, reproducing, disseminating, or otherwise searching his private files and e-mail communications. According to the United States Supreme Court in O’Connor v. Ortega , work-related intrusions by public employers may be justified by the governmental interest in the efficient and proper operation of the workplace. 433 With respect to investigations of work-related misconduct, the O’Connor Court stated that:

Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practice and procedures, or by legitimate regulation. . . . Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement or other work-related misfeasance of its employees. 434

Employers do not have the right to eavesdrop on an employee’s private telephone conversations. However, as explained below in greater detail, employers do have the right to control and monitor their electronic communications resources. To do so, employers must put their employees on notice by adopting a written policy that includes specific language advising employees that all electronic communications, including e-mail and text messages, sent and received on the employer’s equipment, including cellular telephone, pagers, and other electronic devices are the employer’s property and are subject to monitoring. Moreover, employers must consistently apply their written policy.

2. F EDERAL S TATUTES P ROHIBIT I NTERCEPTION OF E LECTRONIC T RANSMISSIONS

The Federal Crime Control and Safe Streets Act of 1968 (Wiretap Act) 435 makes it illegal to intentionally intercept any wire, oral or electronic communication without consent. The Electronic

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