Not for Their Eyes Only

As a top-performing waste services salesman, Bert Nevins (not his real name) thought he could do pretty much as he pleased at work as long as his “numbers” were good.

For a while, the sales manager ignored the fact that Burt seemed to be spending a lot of time with personal e-mails and on the Internet. Why confront an employee who arrived early, worked late, and whose accounts were consistent and strong?

Then, acting on a tip from another salesman, the manager decided to check up on the contents of and activity on Burt’s company-provided computer. He initially found a history of transactions on eBay. Oh, well, not a big deal … as it were. But the adult themes and pictures were another story. Digging further, he found images of child pornography.

What’s important here is that the company had an announced policy — that is, one that was communicated to all employees — that supervisors and managers have the right to inspect the contents of computer files or to generally monitor computer use.

As a general rule, if a private company has a clearly stated policy of periodically checking on how employees use company property, particularly computers, then no employee can have a reasonable expectation of privacy about what is in the computer’s files.

In U.S. v. Ziegler [456 F.3d 1138 (9th Cir. 2006)], a federal appeals court affirmed a lower court decision that refused to suppress evidence uncovered by an employer who searched an employee’s computer files and turned over what it found to the FBI. The decision signals that employees in the private sector are covered by a pattern of legal decisions developed in the context of public employment.

Twenty years ago, the U.S. Supreme Court ruled that a governmental employer does not need a warrant to search an employee’s office for a work-related reason, for example, when the employer is investigating possible workplace misconduct. [O’Connor v. Ortega, 480 U.S. 709.] But, if the search takes place in a space where the employee has a reasonable expectation of privacy, the search is subject to the Fourth Amendment standard of reasonableness.

Although a public employee may have a legitimate expectation of privacy in some parts of his or her office, such as drawers and file cabinets, that expectation can be reduced or even eliminated by announced office practices and procedures, according to many lower court decisions applying the O’Connor case.

All employers, public and private, have a compelling interest in maintaining a workplace where office property is not used for non-business purposes, not to mention for activities that are prosecutable offenses. This is not to say that employers should make a “federal case” out of occasional, casual personal use of computers and other office equipment.

To underscore what the company employee manual says about personal use of office equipment, managers and supervisors should give verbal and written reminders to the staff from time to time. Maybe a more dramatic way to make the point is to distribute summaries of reported court cases that uphold employee firings for this type of misconduct.

— Barry Shanoff
Legal Editor
Rockville, Md.