California’s State Constitution provides very broad protections for California resident’s privacy. (Article 1, Section 1). Many “tough” decisions have to be made by the courts when the rights of citizens to their reasonable expectations of privacy clash head-on with the employer’s interest in protecting trade secrets, retaining confidentiality, assuring workplace and public safety by randomly administering drug tests), and other employer interests. In no case is this balancing more important than in computer privacy. In our lawsuits involving discrimination based on age, sex, race, national origin, physical or mental condition, or whistle blowing, we find more and more opportunities to assert collateral claims for invasion of privacy.
Many employers advise their new employees through handbooks and on-line reminders that the employee who uses the company computer/network for personal e mailing does so at their own risk. In many companies there are limits on the use of office computers for non business reasons. As stated in one opinion: “…the use of computers in the employment context carries with it social norms that effectively diminish the employee’s reasonable expectation of privacy with regard to his use of his employer’s computers.” TBG Insurance Services Corp vs. Sup Court (Zieminski), 96 CA 4th 443, 452 (2002). When an employer connects its e mail system to the Internet and permits employees to make sue of this both for business and private purposes, the company is actually contemplating the employee’s receipt of unsolicited as well as solicited communications. “That some communications would, because of their contents, be unwelcome to Intel management was virtually inevitable.” Intel Corp vs. Hamidi, 30 C4th 1342, 1359-60(2003).
Various state and federal laws impose some limits on an employer’s right to patrol its corporate e mail system. For example, the federal wiretap statute makes it unlawful to “intercept” or “disclose the content of any wire, oral or electronic communication.” 18 USC Section 2511(1)(a),(c). California’s Penal Code Section 632 prohibits the eavesdropping upon or record(ing) of confidential communications without the consent of all parties. Federal law, namely National Labor Relations Board (NLRB) (29 USC Section 157, et seq.) provides employees with the right to communicate with each other while at work, concerning such matters as unions, working hours and wages. If an employer monitors the workplace and punishes workers for communicating electronically over these matters, it risks violating the NLRB..
Many potential clients will communicate with us regarding their discrimination, wrongful termination, sex harassment, or other allegations using e mails sent from the employer’s computers. This can easily result in a waiver of the attorney client privilege! In a recent case, Holmes vs. Petrovich Develop.Corp, LLG 191 CA 4th 1047, 1051 (2011), the court held that “e mails sent via company computer under the circumstances …were akin to consulting (the employee’s) lawyer in (the) employer’s conference room in a loud voice, with the door open, so that any reasonable person would expect that their discussion…would be overheard.” Other states such as New Jersey have concluded opposite that attorney-client communications remain privileged. In a case from that state (Stengartt vs. Loving Care Agency), the court held that an employee can reasonably expect that e mail with his lawyer the employee’s personal, web-based account will remain private, enough though transmitted by way of the employer’s lap top computer. The court cautioned that the result might be different if the employee had been warned that the company would monitor the computer system for personal use.
In determining whether you the employee have a reasonable expectation of privacy, take a look at the employer’s policy or procedures manuals. Do they state that e mail or other electronic communications are to be used solely for company business? Do they mention the right to monitor or access all employee internet or e mail? Does the manual state that you have waived your privacy? Has the company told you your password must be known to them at all times? (why else would they have it other than to open your mail?). Does the company prohibit access to certain accounts or web pages; does it prohibit personal posting, such as on Facebook?
In our next blog, lets discuss privacy in the California employer-employee relationship in other contexts, such as employee dating, monitoring of audio/visual recordings, workplace searches, credit checks, psychological testing, disclosure of your personnel records to their parties, and mandatory polygraph exams.
In most cases, a violation of California workplace privacy can give you a lawsuit based on termination in violation of public policy.
This blog should be considered educational in nature, not legal. Only an attorney licensed to practice in your jurisdiction and familiar with the facts of your case can give you legal advise. We practice employment law representing employees only in our ten California offices.