Posted on Wednesday, May 5th, 2010.
By Jim Prusinowski
The New Jersey Supreme Court recently issued a decision regarding the right to privacy that an employee has in information maintained on an employer’s computer. Stengart v. Loving Care, 201 N.J. 300 (2010). In that decision, the Court articulated standards that New Jersey employers must maintain and guidelines for policies that need to be adhered to if the employer is going to seek to acquire an employee’s personal information from a company maintained computer. These requirements included articulating under what circumstances such information can be obtained and what information the employer will be able to acquire. This places a high burden on employers as technology is ever changing and the amount of information that can be obtained and under what circumstances will change regularly. As such, employers will be required to consistently update their policies to ensure that the information on the computers, whether work related or personal in nature, will be accessible.
The United States Supreme Court recently heard arguments in a similar case. Quon v. Arch Wireless. Quon is a police officer in California that was issued a cellular telephone by his employer. He was allowed to use the phone for personal use; however, in the event he incurred additional charges on the phone – those beyond the monthly subscription allotment – Quon would be responsible for any cost overage. Quon used the phone to send sexually explicit text messages and went over his texting limit. He paid for the additional data use when required.
An investigation into the usage of the cellular phones in the Department was conducted to determine what the phones were being used for – personal versus business usage. As part of the investigation, the Department obtained a copy of all of the text messages that were sent over the Department issued phones. At this time, it was discovered that Quon was sending sexually explicit messages.
Quon and some of the people he exchanged text messages with sued the Department claiming that their right to privacy was violated when the Department accessed the text messages. The Ninth Circuit Court of Appeals, which includes California, ruled that an informal policy of a supervisor providing that if an employee paid for data overages, their messages would not be inspected prevented the department from accessing and reviewing the text messages.
On April 19, 2010, the United States Supreme Court heard oral arguments on the case. It will likely issue a decision by July 4, 2010. While this case relates to a public employer, the decision could have significant implication on what private employers may do in accessing data on employer issued devices.
It is evident that currently an employer is required to have a clear policy regarding what right to privacy an employee should expect in information maintained on a company issued device. However, even a well drafted policy may have limitations. It is also important to understand that if a policy provides for an employer’s ability to monitor an employee’s activity, the monitoring provision cannot be invoked selectively against employees who engage in protected activities such as union organizing or complaining of a hostile work environment. Guard Publishing Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009); Zakzewska v. The New School, 543 F. Supp. 2d 185 (S.D.N.Y. 2008).
Today, an employer likely does not have a right to access a web-based site that is password protected which an employee accesses from work, even if the user name and password are stored on the employee’s computer. Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, 587 F. Supp 2d 548 (S.D.N.Y. 2008).
In sum, an employer likely does not have unfettered access to the information that is maintained on an employer issue computer or mobile device. The United States Supreme Court will likely not alter this. It is anticipated that additional considerations and guidelines will be provided to employers on how to structure a technology usage policy in a workplace to maintain broad access to the electronically stored information. It is imperative that employers constantly update this and other employment policies to conform with the ever changing employment laws in their states and by the Federal Government.