Privacy in the Workplace: Electronic Surveillance under State and Federal Law

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Presented at the Utah State Bar 2010 Summer Convention - Copyright 2010 Mudd Law Offices

Presented at the Utah State Bar 2010 Summer Convention - Copyright 2010 Mudd Law Offices

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  • 1. Privacy in the Workplace: Electronic Surveillance Under State and Federal Law Charles Lee Mudd Jr. – Mudd Law Offices
  • 2. Overview
    • Trends in Workplace Surveillance
    • Highlights of Applicable Law
    • More Common Surveillance Issues
    • Arbitration - Lessons Learned
    • Policy Guidelines
    • Novel Circumstances
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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."
  • 7. 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.
  • 8. Protecting Employers … and Employees
    • With increasing prevalence of workplace surveillance
    • Employers Must Be Advised Properly…
    • … in Advance of Implementation
  • 9. Highlights of Applicable Law
    • United States Supreme Court
    • Federal Statutes
    • State Statutes
    • Common Law
  • 10.
        • 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….
    United States Supreme Court
  • 11. 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?
  • 12. 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.
  • 13. 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)
  • 14. Supreme Court (cont’d)
    • Principles arising from and reaffirmed in Quon:
    • special needs of workplace is an exception to Fourth Amendment warrant requirement
    • “ the extent of an expectation [of privacy] is relevant to assessing whether the search was too intrusive”
  • 15. Supreme Court (cont’d)
    • Note:
    • Utah equivalent of Fourth Amendment
    • Utah Constitution, Art I., § 14
  • 16. Federal Statutes
    • Primarily….
    • Electronic Communications Privacy Act
    • Stored Communications Act
    • Computer Fraud and Abuse Act
  • 17. Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
    • § 2511, criminalizes
      • Intentional interception of oral, wire or electronic communication
      • Discloses
      • Uses
  • 18.
    • 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)
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 19.
    • Civil Remedies
      • generally any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 20.
    • 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
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 21.
    • 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…..
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 22.
    • 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…..
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 23.
    • 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.
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 24.
    • 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.”
    Electronic Communications and Privacy Act 18 U.S.C. § 2510, et seq.
  • 25.
    • whoever--
      • 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…..
    Stored Communications Act (18 U.S.C. § 2701)
  • 26.
    • 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 . . .
    Stored Communications Act (18 U.S.C. § 2701)
  • 27.
    • (REMEMBER - CRIMINAL STATUTES)
    • Civil Remedy
      • Very similar to ECPA except minimum statutory of $1,000
      • Punitive if willful determination
      • 18 U.S.C. § 2707
    Stored Communications Act (18 U.S.C. § 2701)
  • 28.
    • 18 U.S.C. § 2702
      • Providers generally cannot disclose contents of communications except in certain instances
    Stored Communications Act (18 U.S.C. § 2701)
  • 29.
    • General Thoughts
    • Harsher penalties when done for malicious purposes or commercial advantage
    • Certain permission creates exceptions
    Stored Communications Act (18 U.S.C. § 2701)
  • 30.
    • General Thoughts
    • Provides exception for “the person or entity providing a wire or electronic communications service.”
      • Thus, courts have been favorable to employers when e-mails occur on employer-created e-mail servers.
      • BUT BE WARY…..MISPERCEPTION
    Stored Communications Act (18 U.S.C. § 2701)
  • 31.
    • 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.
    Stored Communications Act (18 U.S.C. § 2701)
  • 32.
    • 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.
    Stored Communications Act (18 U.S.C. § 2701)
  • 33.
    • Impact of Quon on Use of Employer Devices
    • by Employees will continue….
    Stored Communications Act (18 U.S.C. § 2701)
  • 34. 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
  • 35. 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)
  • 36. Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030)
    • Protected Computer
    • …… and Causes Damage
  • 37. Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030)
    • Civil Remedy provision
    • 18 U.S.C. § 1030(g)
    • Anyone harmed BUT….
  • 38. 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;
  • 39. 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
  • 40. Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030)
    • Must be
    • Unauthorized Access
    • Exceeding Authorized Access
    • Key Question….
  • 41. 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)
  • 42. 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.
  • 43. 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
  • 44. 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
  • 45. 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.
  • 46. 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]
  • 47. Utah 76-9-403. Communication abuse
    • [the foregoing paragraph] does not extend to:
      • Overhearing of messages through a regularly installed instrument on a telephone party line or on an extension; or
      • 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
  • 48. 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.
  • 49. 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.
  • 50. 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.
  • 51. Interception of Communications Act 77-23a-1, et seq.
    • Akin to the ECPA
  • 52. Access to Electronic Communications 77-23b-1, et seq.
    • Akin to the SCA
  • 53. Common Law
    • Privacy Torts
    • Utah
    • Intrusion Upon Seclusion
    • Public Disclosure of Embarrassing Private Facts
    • Misappropriation of Name or Likeness
    • False Light in Public Eye
  • 54. 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.'"
  • 55. 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)
  • 56. 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)
  • 57. 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.
  • 58. 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.
  • 59. More Common Surveillance Issues
  • 60. 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
  • 61. 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
  • 62. 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
  • 63. 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)
  • 64. 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 . . .
  • 65. 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 . . . ."
  • 66. 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 e-mail system despite company assurances that e-mails would "remain confidential and privileged.”
  • 67. 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.”
  • 68. 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)
  • 69. 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.").
  • 70. 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.
  • 71. 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
  • 72. 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.
  • 73. 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.
  • 74. 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.
  • 75. 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?
  • 76. 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
  • 77. 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.
  • 78. 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.
  • 79. 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.
  • 80. 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.
  • 81. 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
  • 82. 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.
  • 83. Arbitration - Lessons Learned
  • 84. 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.
  • 85. 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;
  • 86. 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;
  • 87. Arbitration - Lessons Learned
    • Suggested Guidelines
    • Limited collection of information through technological monitoring;
    • Reasonable suspicion of an infraction before monitoring;
  • 88. 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.
  • 89. Arbitration - Lessons Learned
    • Monitoring Personal Use of Computers
    • Forbidding personal use is out of sync with modern workplace reality
  • 90. 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.
  • 91. 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.
  • 92. Arbitration - Lessons Learned
    • Monitoring Personal Use of Company Computers
    • Nonetheless…..Some Uses Can Be Permitted
      • Illegal conduct….
        • downloading images of child pornography
  • 93. Arbitration - Lessons Learned
    • Monitoring Personal Use of Company Computers
    • Nonetheless…..Some Uses Can Be Permitted
      • Illegal conduct….
        • defamatory communication
  • 94. 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
  • 95. Arbitration - Lessons Learned
    • Notice of Use
    • Provides an important safeguard for employees' right to privacy
    • Does Not Interfere With Ability to Monitor
  • 96. 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.
  • 97. Arbitration - Lessons Learned
    • Surreptitious Surveillance, when is it appropriate?
    • When there is a reasonable suspicion that a violation of company policy has taken place.
  • 98. 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.
  • 99. Policy Guidelines
    • We have discussed various items for a policy….
    • ….presumes the need for a policy.
  • 100. Novel Issues
  • 101. Novel Issues - Text Messages/Smart Phones City of Ontario v. Quon United States Supreme Court (2010)
  • 102. 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
  • 103. 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.
  • 104. 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
  • 105. 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."
  • 106. 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.
  • 107. Novel Issues - Title VI of Civil Rights Act
        • No-dating policies have been challenged as sex discrimination.
        • Dress codes may result in religious discrimination.
  • 108. 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
  • 109. 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
  • 110. 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
  • 111. 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
  • 112. Charles Lee Mudd Jr. Mudd Law Offices
    • Park City Office
    • 311 Main Street
    • Second Floor
    • P.O. Box 483
    • Park City, Utah 84060
    • 435.640.1786 Telephone
    • 435.603.1035 Facsimile
    • [email_address]
    • Chicago Office
    • 3114 West Irving Park Road
    • Suite 1W
    • Chicago, Illinois 60618
    • 773.588.5410 Telephone
    • 773.588.5440 Facsimile
    • [email_address]