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

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.

• Email This
• Print
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks (1)
• Share Link