Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

On October 18, 2012, the Illinois Supreme Court delivered a very important decision for Illinois employers in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012). The court not only confirmed that the tort of intrusion upon seclusion is recognized in Illinois, it also applied principles of agency law to find an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer's agent. To learn more about the decision, please see Littler's ASAP, Illinois Supreme Court Recognizes Privacy Tort and Holds Employer Liable Under Agency Law, by David Haase, Kathryn Siegel, and Ethan Zelizer.

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By Philip L. Gordon

The Supreme Court ruled unanimously yesterday that law enforcement must obtain a search warrant before placing a Global Positioning System (GPS) device on a suspect’s vehicle for purposes of tracking the vehicle’s location. The decision effectively overturned Antoine Jones’s life sentence for drug trafficking which was obtained, in part, through the use of location tracking information generated by a GPS device secretly placed by the FBI, without a search warrant, on Jones’s wife’s Jeep Grand Cherokee. Although the Court’s analysis focuses exclusively on the Fourth Amendment to the U.S. Constitution, which applies only to government actors, the decision has potentially important implications for private employers who are turning increasingly to location-tracking capabilities in vehicles, smartphones, and even laptops to track employees for management and investigative purposes.

To begin with, the Court’s decision highlights the dearth of legislation in the area. None of the Court’s three opinions — the lead opinion by Justice Scalia, a concurrence in that opinion by Justice Sotomayor, and an opinion by Justice Alito concurring in the result but not with Justice Scalia’s reasoning — cited a single federal or state law which regulates location tracking. California’s statute prohibiting the installation of a tracking device on a vehicle without the consent of the vehicle’s owner or lessor appears to be only one of two laws (the other is Texas) on the subject with a significant impact on private employers. In the wake of the Supreme Court’s decision, employers should expect legislative activity in the area.

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By Philip L. Gordon

A recent decision by a New York appellate court is one of the first cases to address the surreptitious use of location tracking for employment purposes. The 3-2 split decision highlights the on-going disagreement among judges over the lawful use of Global Positioning Systems (GPS). The New York case is particularly noteworthy because the U.S. Supreme Court in U.S. v. Jones (argued November 7, 2011)  (Note: the lower court case is U.S. v. Maynard, on cert to the U.S. Supreme Court the case is U.S. v. Jones, referring to respondent Antoine Jones) is currently considering virtually the same issue addressed by the New York court, but in the criminal context. Given the increasing use of GPS in the workplace, employers need to understand the legal risks associated with this highly effective management and investigative tool.

The subject of the New York case was a 30-year employee of New York’s Department of Labor, serving most of that time as the Department’s Director of Staff and Organizational Development. Despite his high-level position, he had been a “problem employee” for nearly a decade, having been disciplined on several occasions. The dispute that ultimately led to the appellate court decision had its inception in the Labor Department’s investigation of the employee for falsifying time records. The Department initially tried to track him the “old-fashioned way,” i.e., by tailing him, but the employee spotted and evaded the tail. The state’s Inspector General, to whom the Labor Department referred the investigation, then secretly planted a GPS device on the employee’s personal vehicle and collected location data 24/7 for a one-month period. Based, in part, on the location data collected, a Labor Department hearing officer recommended the employee’s termination for, among other things, falsifying time records.

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Even if your organization already has revised its electronic resources policy — as prior blog posts suggest — to address personal e-mail accounts in light of the New Jersey Supreme Court’s decision in Stengart v. Loving Care Agency and to address text messages in light of the U.S. Supreme Court’s decision in Quon v. City of Ontario, you still should consider revisiting that policy yet again in light of the U.S. Court of Appeals for the Seventh Circuit’s decision on September 9, 2010, in United States v. Szymuszkiewicz (pdf). The court’s decision affirmed the criminal conviction for Federal Wiretap Act violations of an IRS agent who, unbeknownst to his supervisor, activated the supervisor’s Microsoft Outlook autoforwarding feature. As a result, duplicates of the supervisor’s e-mail were automatically forwarded to the IRS agent without the supervisor’s knowledge or consent. The IRS agent received a sentence of eighteen months probation.

The Seventh Circuit’s decision turned principally on whether “auto forwarding” e-mail constitutes an “interception” as defined by the Federal Wiretap Act. The court answered that question in the affirmative because the auto forwarding permitted the IRS agent to obtain the content of e-mail stored in his supervisor’s e-mail inbox.

For employers, the court’s decision highlights the risk of Federal Wiretap Act liability arising from commonplace IT functions. Corporate IT departments routinely activate “auto forwarding” after an employee has left an organization so that a supervisor or co-worker can promptly respond to e-mail intended for the former employee. It also is not uncommon for corporate IT departments to rely on “e-mail journaling” to create a duplicate set of out-going and incoming e-mail for archival purposes. Journaling essentially functions the same as auto forwarding except that the duplicate e-mail content is stored on a server for possible future retrieval rather than being transmitted directly to a third party’s e-mail inbox.

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Employers are increasingly tracking their employees’ whereabouts as smartphones, laptops, and vehicles equipped with location-tracing technology become ever more prevalent. Statutes restricting the use of location-tracking devices typically do not impinge upon such tracking because the law’s definition of a tracking device does not encompass phones or laptops enabled with Global Positioning System (GPS) technology or because the law permits the vehicle’s owner to install a tracking device. The question remains, however, whether tracking employees’ location constitutes a common law invasion of privacy.

A recent decision by the federal court of appeals in the District of Columbia suggests that, in certain circumstances, employers who track their employees’ location could face liability for invasion of privacy. In U.S. v Maynard (pdf), the court held that the FBI had infringed upon the criminal defendant's reasonable expectation of privacy by “tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Key to the court’s decision was the intimate knowledge of the suspect’s life that could be gleaned from pervasive location-tracking as opposed to observing the suspect’s public movements for a short period of time:

Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

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On Monday, the California Supreme Court reversed the lower court decision in Hernandez v. Hillsides, a closely watched case involving video surveillance of employees. The court held that the defendant, Hillsides, Inc., a residential facility for neglected and abused children, did not violate two employees’ privacy by surreptitiously installing a concealed video camera in their shared office. Hillsides determined that one of the computers in the office had been used late at night to view pornography, and installed the camera in the hopes of catching the perpetrator.

The court’s opinion is particularly instructive for employers who are considering similar tactics to uncover workplace misconduct. To begin with, the court found that both employees had a reasonable expectation of privacy in their office even though (a) the office was shared, (b) several co-workers and supervisors had a key to the office, and (c) a “doggy door” at the bottom of the office door had no flap to prevent peeking into the office. The court relied on the facts that the office was not accessible to the general public; the employees could pull down the blinds to obscure public view through the office’s windows; the employees could lock the office door; and when the blinds were down and the door was locked, the employees would change clothes in the office and otherwise act as though the office were a private place. These circumstances prevail in many office settings. Consequently, employers, especially those in California, need to carefully consider whether a particular office setting is “private” before installing surveillance equipment there.

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Management-side lawyers and human resources professionals need to start thinking deeply about the key finding in a recent survey by The Creative Group, a staffing service company: more than one-half (57%) of 250 surveyed advertising and marketing executives responded that surfing the web during working hours is acceptable. How does an employer reconcile this apparent new-found acceptance of on-the-job Web surfing with the American Management Association’s finding in its 2007 survey of workplace monitoring that 30% of employers surveyed had fired an employee for Internet surfing at work?

Employers in more staid industries might shrug off the new survey result as a quirk of professions that appear to be more about creativity than productivity, but that would be too shortsighted. Let’s face it, nearly everyone surfs the Web at work at one point or another. Perhaps more importantly, the first generation to spend adolescence surfing the Web is starting to move into middle management and even senior management. This generational shift is rendering obsolete — in practice if not in form — corporate policies that forbid employees from using corporate electronic resources, i.e. Internet access, for non-business purposes.

Facing reality does not mean that employers must open the floodgates to pornography, fantasy football and online gambling. Instead, employers need to take up the challenging task of establishing rules for acceptable and unacceptable non-business use of the corporate Internet connection. The employer’s existing policies are a good starting point; employees should be barred from accessing any Web sites that communicate information which, if posted on the corporate intranet, would violate the company’s anti-discrimination and anti-harassment policies. Establishing bandwidth limits and prohibitions on Internet use that interferes with network operations should effectively eliminate most streaming media. Requiring employees to limit non-business use of the corporate Internet connection to breaks and meal periods and to no more than thirty minutes daily would permit discipline of employees engaging in potentially addictive and disruptive Internet activities, such as online gambling.

What is left might actually enhance productivity or create some good will. Rather than taking an extended lunch break, employees can spend a few minutes on the Web to order clothes or books. Employees who have been grinding during the week can plan a few weekend activities that will provide a much-needed respite from work. In short, the new survey result emphasize the point that the time has arrived for employers to revisit their business-only, workplace Internet policies.

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