Privacy Issues in the Workplace

discretion of the government entity and can be modified or revoked at any time, that such electronic devices are subject to search, and an employee is obligated to surrender the electronic device back to the government entity at any time; and  Seek legal counsel before compelling a public employee to allow a search of their personally owned electronic devices or of personal electronic information that is maintained by an outside service provider and not directly controlled by the government entity.

G. G UIDELINES F OR E LECTRONIC C OMMUNICATIONS IN THE W ORKPLACE Employers have legitimate reasons for ensuring that their electronic communications systems are not abused by employees. In California, courts would likely find that an employee does not have a reasonable expectation of privacy when he or she has given written consent to monitoring of the employer’s computers and electronic system. 470 For this reason, employers must have a written Electronic Communications Resources Policy that puts employees on notice of the following:  Electronic communications such as voicemail, e-mail and/or systems accessible via the Internet are the employer’s property and should only be used for legitimate business purposes during working hours. This prohibition is not meant to interfere with an employee’s right to organize or discuss the terms and conditions of his/her employment with others during nonworking hours through the use of employer email systems.  The employer reserves the right to monitor any of its electronic communications systems (including voicemail, e-mail, and the Internet) to assure that its property is being used for business purposes only during working hours and to prevent any unlawful or improper use.  Employees do not have a personal privacy right in any matter created, received, stored in or sent to an electronic system, maintained by the employer. It is important to note that a recent NLRB decision recognized the right of employees to engage in Section 7 activities during non-working hours through the use of an employer’s email system unless special circumstances justify a business use only restriction. 471 Special circumstances in support of a total ban on non-business emails during non-working hours require a showing that the restriction is necessary to maintain production or discipline. 472 An employer may also institute controls on the use of non-business emails during non-working hours when the controls are applied uniformly and consistently enforced to the extent they are necessary to maintain production and discipline. 473

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