The increasing prevalence of employer-issued electronic devices has created a host of new, emerging workplace issues. Employers often provide their employees with PC or notebook computers, tablets or smart phones. Often employees have access to employer-provided computing devices both during work hours and while off-duty. The legal system is being asked to balance the privacy rights of employees with the legitimate business interests of employers.
Key Issue: Do employees have a reasonable expectation of privacy with respect to emails, texts, tweets and internet content which using employer-provided computing devices?
Answer: All employers should adopt computer usage policies which explicitly state that employees using company-provided computing devices or servers have absolutely no reasonable expectations of privacy with respect to any content on these devices irrespective of whether the content was created during work hours or off-duty. Courts have uniformly held that when employers have communicated a properly drafted computer usage policy to all incumbent employees and applicants, those persons have no legitimate expectation of privacy regarding their use of employer-provided computing devises.
The Role of Computers in Employment Litigation
Nearly every employment case now involves cloning and reconstruction of employee hard drives by forensic computer experts. For example, in a sexual harassment case involving a plaintiff who claims she was harassed by a supervisor, it has become standard practice that both the alleged victim’s and the alleged harasser’s hard drives will be cloned and reconstructed. The process will restore any and all deleted emails and internet content. The lawyer representing the Plaintiff seeks sexually charged emails or other messages from the supervisor as well as sexually suggestive internet content from the supervisor’s hard drive. The employer’s lawyer, on the other hand, hopes to find electronic evidence that demonstrates that the plaintiff was a willing participant with the supervisor, or in other words, that the attentions of the harasser were not unwelcome to the Plaintiff.
Sexually charged internet content and suggestive or sexually explicit electronic communications from a supervisor’s or manager’s computing device are often used by experienced Plaintiff’s lawyers as evidence of a hostile workplace environment.
NOTE: Recent surveys suggest that while a high percentage of U.S. employers have adopted and communicated computing device usage policies, a far lower percentage of U.S. employers conduct systematic monitoring of employees’ computer content.
Carl F. Muller