A federal court in New York ruled that an employer did violate an employee’s “right of privacy” by inspecting his office computer and email.

Church Law and Tax 2004-07-01


Key point. Employers wanting to inspect computers they provide to their employees, and to discipline or dismiss employees for inappropriate or unauthorized computer use, should have employees sign a computer use agreement consenting to the inspection of their computer as well as discipline or dismissal for inappropriate use.

* A federal court in New York ruled that an employer did violate an employee’s “right of privacy” by inspecting his office computer and email. A man (Alex) was hired by a company as a computer programmer. On a number of occasions he was confronted by his supervisor about work-related issues including poor work relations with co-workers and insubordination towards superiors. He eventually was dismissed, and later sued his former employer on several grounds. One of his claims was that the employer violated his privacy by allowing his computer to be accessed by supervisors. The employer claimed that Alex’s inability to provide supervisors with documentation of his work, failure to complete assigned projects, and on-going disciplinary issues such as insubordination and disregard for protocol led to concerns regarding how he was using his time on his company-provided computer. As a result, his supervisor decided to inspect his computer and email records for inappropriate use. The court rejected Alex’s claim that the inspection of his computer and emails invaded his privacy. It noted, “Since New York’s limited right of privacy does not prohibit an employer from accessing employee email and other documents produced on the company’s system, Alex has no claim to adjudicate.”

Application. This case demonstrates that employer inspection of computers it provides to employees will not necessarily constitute an “invasion of privacy.” To minimize this risk, church leaders should adopt a computer use policy that authorizes the inspection and monitoring of computers as well as discipline or dismissal for unauthorized or inappropriate use. Such a policy should be consented to by all employees. It is not clear whether such a policy can apply to current employees unless they provide the church with something of value. This is a result of the basic principle of contract law that no contractual commitment is binding unless a party gives up something of value. This problem may be avoided by having current employees sign a written form (agreeing to the policy) at the time they receive a pay raise. This is an issue that should be addressed with a local attorney. The policy should be explained to all new employees at the time of hiring, and they should be required to sign a statement acknowledging that they understand and agree to the policy. Chimarev v. TD Waterhouse Investor Services, Inc., 280 F.Supp.2d 208 (S.D.N.Y. 2003).

Resource. For additional information, see the feature article entitled “Accessing Employees’ Telephone Calls and Email” in the September-October 2002 issue of Church Law & Tax Report.

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