Federal Courts Continue Grappling With Privacy Issues and Employee Communications

Author: Beth P. Zoller, XpertHR Legal Editor

The federal courts continue to evaluate employee privacy rights and an employer's right to monitor employee communications and terminate employees based on those communications, whether under common law, statute or the US Constitution.

In Garcia v. City of Laredo, +2012 U.S. App. Lexis 25370 (5th Cir. 2012), Fanny Garcia (Garcia) claimed that the City of Laredo Police Department violated the Stored Communications Act (SCA) by accessing photographs and messages on her personal cell phone, and using evidence of an affair in breach of department policy to terminate her. However, the 5th Circuit held that that photographs and text messages on a personal cell phone are not protected by the SCA because the phone is not considered a facility within the meaning of the Act. The SCA generally protects large data storage facilities, such as internet service providers and search engines from unauthorized access of electronically stored information. In doing so, the 5th Circuit joined other federal courts in ruling that the SCA is not intended to provide protection to individual users of personal electronic devices such as cell phones, laptops or other personal computers as these personal devices are not covered facilities. Further, there was no evidence that the department ever obtained any information from the cellular company or network; thus, the department did not violate the SCA's prohibition against unauthorized access to a facility.

In US v. Hamilton, +2012 U.S. App. Lexis 25482 (4th Cir. 2012 ), Phillip Hamilton (Hamilton), a Virginia lawmaker, was found guilty of bribery and extortion when a jury concluded that while in office, Hamilton "secured state funding for a public university in exchange for employment by the university." On appeal, Hamilton argued that emails sent to his wife from his employer's computer at a part-time consulting job for a public school system were subject to the marital communications privilege and improperly used as evidence to convict him. Under the marital communications privilege, communications between spouses are presumed privileged and confidential unless a voluntary disclosure of a communication waives the privilege. The 4th Circuit disagreed and held that by sending the incriminating emails to his wife from his workplace computer, Hamilton had voluntarily disclosed the communications to the public, and thus, waived the privilege. The court reasoned that the marital communications privilege did not extend to communications sent by employees from a workplace computer because employees have no reasonable expectation of privacy when using the employer's computer network.

In Dixon v. University of Toledo, +2012 U.S. App. LEXIS 25648 (6th Cir. 2012),the 6th Circuit held that the University of Toledo was permitted to terminate Associate Vice President of Human Resources and professor Crystal Dixon (Dixon) for writing an anti-gay piece in a local paper's op-ed column because it was contrary to the University's policies regarding equality and equal opportunity. In the article, the professor denied comparisons between the gay rights movement and the civil rights movement and argued that, because homosexuals could choose their sexual orientation, they were not subject to the same civil rights protections as racial minorities. The court stated that Dixon was not entitled to First Amendment protections because she held a policy-making position with significant discretionary authority to carry out the University's policy goals and she was delegated appointing authority and was responsible for recommending, implementing and overseeing policy. Further, the court determined that Dixon was speaking to a policy issue directly related to her position since her public statements directly contradicted several University policies. The court reasoned that Dixon's interest in free speech did not outweigh the University's interests in maintaining a campus committed to equality and diversity and upholding a policy prohibiting discrimination based on sexual orientation and gender identity. The court noted that the University had recently implemented the Spectrum Safe Places Program encouraging faculty and staff to open their space as a safe place for lesbian, gay, bisexual and transgender individuals.

Advice for Employers

Although these cases deal with distinctly different issues, taken together they highlight the importance of establishing clearly worded policies related to employee privacy and personal communications. These cases serve as a reminder that it is critical to manage employees' privacy expectations by advising employees that all electronic communications on employer-provided devices, as well as those on personal devices, may be reviewed, monitored and accessed by the employer and used as evidence against the employee under certain circumstances. This may deter employees from engaging in inappropriate communications using mobile devices and social media, which could potentially place the employer in a bad light and threaten the employer's interests. Further, employers may want to advise employees, especially those in high level and policymaking positions that their communications may reflect on the employer. As such, employees may want to include a disclaimer that an employee's views, positions and opinions expressed on social media and in other communications are those of the employee and not the employer. Further, in some cases, public employees like Dixon may hold policy-making positions that erode their right to free speech under the First Amendment when speaking about matters directly related to their job duties.

By providing employees with comprehensive and detailed workplace policies and training employees and supervisors on such policies, employers can better protect against invasion of privacy and other statutory or constitutional claims. Further, an employer has a greater chance of succeeding on an employee's claim if it can show that it had a valid concern about the employee's communications based on legitimate business interests.