Invading Your Privacy Can your employer invade your privacy through monitoring t

Question

Invading Your Privacy

Can your employer invade your privacy through monitoring technologies? Numerous lawsuits have been filed by employees who believed their employer was wrong to invade their privacy with monitoring technologies. Below are a few cases highlighting lawsuits over employee privacy and employer rights to monitor.

Smyth versus Pillsbury Company

An employee was terminated for sending inappropriate and unprofessional messages over the company’s email system. The company had repeatedly assured its employees that email was confidential, that it would not be intercepted, and that it would not be used as a basis for discipline or discharge. Michael Smyth retrieved, from his home computer, email sent from his supervisor over Pillsbury’s email system. Smyth allegedly responded with several com- ments concerning the sales management staff, including a threat to “kill the backstabbing bastards” and a reference to an upcoming holiday party as “the Jim Jones Kool-aid affair.” Pillsbury intercepted the email and terminated Smyth, who then sued the company for wrong- ful di scharge and invasion of privacy. The court dismissed the case in 1996, finding that Smyth did not have a reasonable expecta- tion of privacy in the contents of his email messages, despite Pillsbury’s assurances, because the messages had been voluntarily communicated over the company’s computer system to a second person. The court went on to find that, even if some reasonable expectation of privacy existed, that expectation was outweighed by Pillsbury’s legitimate interest in preventing inap- propriate or unprofessional communications over its email system.

Bourke versus Nissan Motor Corporation

While training new employees on the email system, a message sent by Bonita Bourke was randomly selected and reviewed by the company. The message turned out to be a personal email of a sexual nature. Once Bourke’s email was discovered, the company decided to review the emails of the rest of Bourke’s workgroup. As a result of this investigation, several other personal emails were discovered. Nissan gave the employees who had sent the per- sonal messages written warnings for violating the company’s email policy. The disciplined employees sued Nissan for invasion of privacy. The employees argued that although they signed a form acknowledging the company’s policy that company-owned hardware and software was restricted for company business use only, their expectation of privacy was reasonable because the company gave the plaintiffs passwords to access the computer system and told them to guard their passwords. However, a California court in 1993 held that this was not an objectively reasonable expectation of privacy because the plaintiffs knew that email messages “were read from time to time by individuals other than the intended recipient.”

McLaren versus Microsoft Corporation

The Texas Court of Appeals in 1999 dismissed an employee’s claim that his employer’s review and dissemination of email stored in the employee’s workplace personal computer constituted an invasion of privacy. The employee argued that he had a reasonable expectation of privacy because the email was kept in a personal computer folder protected by a password. The court found this argument unconvincing because the email was transmitted over his employer’s network. However, according to a news account of one case, a court held that an employer’s use of a supervisor’s password to review an employee’s email may have violated a Massachusetts state statute against interference with privacy. In that case, Burk Technology allowed employ- ees to use the company’s email system to send personal messages, but prohibited “excessive chatting.” To use the email system, each employee used a password. The employer never informed employees that their messages would or could be monitored by supervisors or the company president. The president of the company reviewed the emails of two employees who had referred to him by various nicknames and discussed his extramarital affair. The two employees were fired by the company president, who claimed the terminations were for their excessive email use and not because of the messages’ content. The court denied the com- pany’s attempt to dismiss the suit and allowed the matter to be set for trial on the merits. The court focused on the fact that the employees were never informed that their email could be monitored. This case illustrates the importance of informing employees that their use of company equipment to send email and to surf the Internet is subject to monitoring to prevent subse- quent confusion, and a possible future defense, on the part of employees.

Questions

1. Pick one of the preceding cases and create an argument on behalf of the employee.

2. Pick one of the preceding cases and create an argument against the employee.

3. Pick one of the preceding cases and create an argument on behalf of the employer’s use of monitoring technologies.

4. Pick one of the preceding cases and create an argument against the employer’s use of monitoring technologies.

Explanation / Answer

1.

The case is between Bonita Bourke and Nissan motor company, Bonita is the employee of Nissan Motors. The company has provided an official domain email id through which it is instructed that it should not be shared for any external purpose and it is in the company policy that if it is found that someone has received or sends an email to any outsiders, he/she will be terminated from the job. It has happened with Bonita found guilty because a personal message has been sent to some other outsiders. But it may not be done by Bonita as software and hardware components can be hacked or if anyone somehow retrieved Bonita’s password to held Bonita’s reputation down among all other employees. Technology can also be compromised, so it will be too early to go for termination. So the Company cannot give any quick judgment as it also beyond the law; the decision has to be taken by considering all factors as per law.   

2.

Considering the case of Bonita Bourke and Nissan motor company, an email which has sent from Bonita’s email id is strictly an offense, which quite requires a punishment. As during the joining agreement is has clearly stated in the guidelines that official email ids cannot be used for any personal use so it is not a tolerable act. The incident can hamper the reputation of the company in many ways and legal actions can also be taken against the company by the receiver. It is Bonita’s responsibility to proctor the email id; the responsibility is purely on Bonita. The company will take strict action against her and in this way; all employees will also get to know about the importance of the wrong usage of email ids except for official working purposes may lead to termination.    

3.

The case is with Pillsbury Company, an employee called Smyth who works in the company. The company has provided Smyth with an official email id and also has instructed not to use it with an improper way of communication and to outsiders. Bu the company has observed that Smyth has responded to an email with a comment which is not desirable to do so as the instructions from the company. So monitoring is very necessary to be done to identify such matters and it is obvious that company should charge or give punishment for invading the policies, as it may lead to loss of companies reputations and thorough monitoring various secrets can also be captured if an employee of the company leaks or shared any companies confidential information.

4.

Considering the case of Pillsbury Company and Smyth, the company has always kept a close eye on monitoring technologies which are somehow losing employees privacy and control over themselves. As per the law, it is mentioned that not to monitor those things which are too personal for employees. There are few employee rights in the office premises also which cannot be broken by the organization to its employees. Always proctoring on the employees is also an offense as per the law, as an employee should be given the space to work freely. The things which are only the organization's property can be monitored with their full rights but that does not mean that the organization can observe or monitor the personal things of employees. It is really affecting the privacy of employees and the employees are necessary to raise the voice so that the steps for the organization should be taken properly.

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