When it comes to doing whatever at work, seems only the congenitally clueless think “freedom’s just another word for nothin’ left to lose.”  Well, memo to the clueless, there is much to lose. It’s called a job. There’s no unfettered freedom to do whatever on your employer-provided computers, telephones, pagers and PDAs. Violate employer policy, lose your job.
Back in December, The Irreverent Lawyer blogged about work-related privacy rights and a case coming before the nation’s highest court. It involved a public employee, SWAT Sergeant Jeff Quon, who used his employer-supplied pager for work and personal use and then thought his salacious personal usage would remain private. See U.S. Supreme Court to revisit government workplace privacy. The Court’s opinion in that case was handed down this past week.
In City of Ontario v. Quon, the Court concluded that “Because the search of Quon’s text messages was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the court below erred by concluding otherwise.”
As some had predicted, the ruling was narrow. Consequently, it gave little succor to either side of the workplace privacy debate. It was that very narrowness that doubtless aided its unanimity, 9-0 against Sergeant Quon and for the City of Ontario.
Privacy? You want privacy?
So whether it is an employer-supplied computer, iPhone or pager, privacy rights are so limited, they might as well be nonexistent, especially as employer handbooks continue to further limit work conduct. Privacy? You want privacy? Don’t look for it at work.
Big Brother owns you at the workplace. And even off premises, GPS equipped smart phones and company vehicles can identify an employee’s whereabouts. Scary? You bet, especially if you’re a route salesperson making that ‘last call’ the one for alcohol.
The upshot of all of this is as before. Nothing’s changed except that corporate lawyers and employment defense firms will continue advising clients to keep tightening up their employee handbook language. As a skiing buddy used to say looking over a steep and narrow Triple Black Diamond chute, “Set it for quail.”
Employees have to be smarter about what they say and do while on the boss’s dime. While your boss still can’t follow you into the restroom or put a camera in there, short of that, don’t do anything at work, you wouldn’t what your employer to know about. You’re effectively tethered, especially with work-supplied smart phones and notebooks tying you to work 24/7.
The boss owns your time and so the boss owns you while you’re on the job. But if you still insist on doing something untoward, do it on your own time and on your own digital equipment. Justice Kennedy said as much, “The ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.”
Who you are doesn’t matter.
Workplace privacy pitfalls are also egalitarian. Whether ‘high and mighty’ or meek and humble, Fourth Amendment “reasonable expectations” of privacy are greatly limited whether you’re a saucy sextexting SWAT Sergeant inappropriately using a government-provided pager or a scandal-chased former Chief U.S. District Judge who quit amid an inquiry that included a Complaint Alleging the Judge Viewed Porn in Chambers.
Likewise don’t have privacy expectations even if you’re a judge who stipulates to discipline by consent via an Order because of on-the-job work computer-related misconduct. And even a college dean had much to worry about when he used a university-provided computer to surf for the nasty. There are Prying eyes in cyberspace.
And social media only makes things worse. For example, a Vodafone Employee Gets Fired Over an (un)Funny Tweet and Courthouse News Service reports a Kansas medical technician who’s fired for protesting her supervisor’s harassment on Facebook.
Keep hope alive.
But to try and end on a hopeful note. There was a wee bit of good news for work-related privacy advocates in a 2009 New Jersey Supreme Court decision in Stengart v. Loving Care Agency Inc.
But the case was so unique, its impact has been muted. It involved Marina Stengart accessing her private, password-protected Yahoo email account on a company-provided computer so she could email her lawyer about her pending employment discrimination lawsuit against her employer.
The New Jersey Supreme Court said Stengart “could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to promptly notify Stengart about them, Loving Care’s counsel violated RPC 4.4(b).” 
The New Jersey Court was quick to demarcate the limits of an employee’s privacy expectations. What really saved Marina Stengart was not that the Court was eager to carve out additional employee privacy protections. No, what made the difference was that Marina accessed a private personal email account she had no reason to think her employer could access. And most importantly, the Court was not ready to abrogate her privileged attorney-client communications. “Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies.”
 RPC 4.4 (b) provides that “[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, promptly notify the sender, and return the document to the sender.”