AFFIRMATIVE — EMPLOYMENT — WORKPLACE SPYING — INHERENCY 285

COURT ACTION FAILS TO PROTECT WORKERS

LEGALLY, WORKPLACE PRIVACY ISSUES MUST E DECIDED ON A CASE BY CASE BASIS

Rod Dixon, an attorney at the U.S. Department of Education, "With Nowhere to Hide: Workers are Scrambling for Privacy in the Digital Age," Journal of Technology Law and Policy, Spring 1999, 4 J. Tech. L. & Pol'y 1, EE2001-JGM, P.46

In the workplace setting, common law, statutory, and constitutional tests used to determine whether a reasonable expectation of privacy exists, in turn, require an initial determination whether there is an actual (or subjective) expectation of privacy. n117 The latter, objective determination n118 is tested against the customs, values, and common understandings that confer a sense of privacy upon many of our basic activities. n119 Thus, whether there is a legitimate expectation of privacy in a particular case depends necessarily on the facts and circumstances, with the actual expectation manifested by a party being a question for the fact-finder and the objective reasonableness n120 of the expectation being determined for the particular circumstances as a matter of law. n121

WHEN IT GOES TO COURT FOR PRIVACY MATTERS, THE COURTS SIDE WITH EMPLOYERS

EVE TAHMINCIOGLU, St. Petersburg Times, February 01, 1999, SECTION: BUSINESS; COVER STORY; Pg. 11 TITLE: BUSINESS TOOL OR BIG BROTHER? // acs-EE2001

Disputes over privacy between an employee and employer sometimes end up in court, where judges have tended to side with the employer, experts say.

Employer policies on monitoring are typically outlined in handbooks or verbally conveyed to employees. Such warnings often protect the company's right to monitor workers because they cannot claim an expectation of privacy, legal experts say.

"The tools we provide to employees are explicitly for business uses," said Chuck Miller, a spokesman for Tech Data, which has the capability to monitor everything from phone conversations to Internet access. "Our company respects every employee's right for privacy, but it is inappropriate for employees to use these kinds of tools for personal reasons."

EVEN WHEN UNINFORMED ABOUT MONITORING, EMPLOYEES LOSE IN COURT

EVE TAHMINCIOGLU, St. Petersburg Times, February 01, 1999, SECTION: BUSINESS; COVER STORY; Pg. 11 TITLE: BUSINESS TOOL OR BIG BROTHER? // acs-EE2001

Even if an employer does not inform workers that they may be monitored, employees can end up losing in court.

An example often quoted by privacy experts is a 1996 privacy case involving e-mail messages exchanged among employees of the Pillsbury Co. at its Philadelphia office. Their notes included statements such as "kill the backstabbing bastards," referring to sales management at the company, and a message calling a planned holiday party the "Jim Jones Kool-Aid affair."

Before the exchange of messages, Pillsbury had assured employees that e-mail communications were confidential and would not be intercepted or used for disciplinary purposes.

Despite that, one of the employees involved was fired.

The worker sued Pillsbury, claiming his privacy rights had been violated, but the U.S. District Court in Pennsylvania found that he did not have a reasonable "expectation of privacy" when using the e-mail system because it was used by the entire company.