Privacy – Part 3

A California court ruled that an employee who was fired for using his office computer to access pornographic websites on the Internet was barred from suing his employer for wrongful termination.

Church Law and Tax 2003-03-01


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 California court ruled that an employee who was fired for using his office computer to access pornographic websites on the Internet was barred from suing his employer for wrongful termination or invasion of privacy because he signed a “computer use agreement” giving his employer the right to inspect his computer and dismiss him for inappropriate or unauthorized use of the computer. An employer provided two computers for an employee’s use, one for the office, the other to permit the employee to work at home. Employees were required to sign a computer use agreement that authorized the employer to monitor employees’ office computers and terminate an employee for misuse of the office computer. One of the employees who signed the computer use agreement was a senior executive (Bob) who used two computers owned by his employer, one at the office and the other at his home. The computer use agreement specified that the employer’s computers would be used “for business purposes only and not for personal benefit or non-company purposes, unless such use is expressly approved. Under no circumstances can the equipment or systems be used for improper, derogatory, defamatory, obscene or other inappropriate purposes.” Bob consented to have his computer use “monitored by authorized company personnel” on an “as needed” basis, and agreed that communications transmitted by computer were not private. He acknowledged his understanding that his improper use of the computers could result in disciplinary action, including discharge.

A few years after signing the computer use agreement, Bob was fired after his employer discovered that he “had repeatedly accessed pornographic sites on the Internet while he was at work.” Bob insisted that the pornographic Web sites were not accessed intentionally but simply “popped up” on his computer. Bob sued his employer, claiming that his employment had been wrongfully terminated. The employer asked Bob to return the home computer and cautioned him not to delete any information stored on the computer’s hard drive. In response, Bob acknowledged that the computer was purchased by his employer and said he would either return it or purchase it, but said it would be necessary “to delete, alter, and flush or destroy some of the information on the computer’s hard drive, since it contains personal information which is subject to a right of privacy.” The employer refused to sell the computer to Bob, and demanded its return without any deletions or alterations. Bob objected, claiming an invasion of his constitutional right to privacy.

The employer asked the court to compel Bob to return the computer, claiming that it had the right to discover whether information on the hard drive proved that Bob violated the computer use agreement that he signed. In particular, the employer argued that by accessing Bob’s home computer it could establish if he had visited sexually explicit web-sites at home, which would undermine his story that such sites “popped up” involuntarily on his office computer. Further, the employer insisted that Bob had no legitimate expectation of privacy in his computer in light of the computer use agreement that he signed. Bob claimed that he retained an expectation of privacy with regard to his home computer, despite the computer use agreement. He noted that the home computers were provided as a “perk” given to all senior executives, and that while they were provided in order to permit employees to work at home, it was understood that the home computers would also be used for personal purposes as well. He said his home computer was used by his wife and children, and that it “was primarily used for personal purposes and contains significant personal information and data” subject to his constitutional right of privacy including “the details of his personal finances, his income tax returns, and all of his family’s personal correspondence.

A state appeals court agreed with the employer that it had the right to inspect Bob’s home computer. It concluded that any expectation of privacy Bob had in the information on his home computer was nullified by the computer use agreement he signed. It observed,

We are concerned in this case with the “community norm” within 21st century computer-dependent businesses. In 2001, the 700,000 member American Management Association (AMA) reported that more than three-quarters of this country’s major firms monitor, record, and review employee communications and activities on the job, including their telephone calls, emails, Internet connections, and computer files. Companies that engage in these practices do so for several reasons, including legal compliance (in regulated industries, such as telemarketing, to show compliance, and in other industries to satisfy “due diligence” requirements), legal liability (because employees unwittingly exposed to offensive material on a colleague’s computer may sue the employer for allowing a hostile workplace environment), performance review, productivity measures, and security concerns (protection of trade secrets and other confidential information) …. According to the AMA Findings, four out of ten surveyed companies allow employees full and unrestricted use of office email, but “only one in ten allow the same unrestricted access to the Internet. Companies are far more concerned with keeping explicit sexual content off their employees’ screens than with any other content or matter.”

It is hardly surprising, therefore, that employers are told they “should establish a policy for the use of email and the Internet, which every employee should have to read and sign. First, employers can diminish an individual employee’s expectation of privacy by clearly stating in the policy that electronic communications are to be used solely for company business, and that the company reserves the right to monitor or access all employee Internet or email usage. The policy should further emphasize that the company will keep copies of Internet or email passwords, and that the existence of such passwords is not an assurance of the confidentiality of the communications. An electronic communications policy should include a statement prohibiting the transmission of any discriminatory, offensive or unprofessional messages. Employers should also inform employees that access to any Internet sites that are discriminatory or offensive is not allowed, and no employee should be permitted to post personal opinions on the Internet using the company’s access, particularly if the opinion is of a political or discriminatory nature.” For these reasons, the use of computers in the employment context carries with it social norms that effectively diminish the employee’s reasonable expectation of privacy with regard to his use of his employer’s computers.

The court noted that the computer use agreement gave Bob “the opportunity to consent to or reject the very thing that he now complains about, and that notice, combined with his written consent to the policy, defeats his claim that he had a reasonable expectation of privacy.” He knew that his employer could monitor the files and messages stored on the computers he used at the office and at home. He had the opportunity “to consent to the computer policy or not, and had the opportunity to limit his use of his home computer to purely business matters. To state the obvious, no one compelled Bob or his wife or children to use the home computer for personal matters, and no one prevented him from purchasing his own computer for his personal use. With all the information he needed to make an intelligent decision, Bob agreed to the company policy and chose to use his computer for personal matters. By any reasonable standard, he fully and voluntarily relinquished his privacy rights in the information he stored on his home computer, and he will not now be heard to say that he nevertheless had a reasonable expectation of privacy.

Application. The lesson of this case is clear. Churches that provide employees with computers that include Internet access 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. TBG Insurance Services Corporation v. Superior Court 117 Cal.Rptr.2d 155 (Cal. App. 2002).

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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