Owen H. Laird, Esq.
Over the past week, Apple Inc. and the United States Government have been locked in a dispute over access to information on the iPhone of Syed Rizwan Farook, one of the assailants involved in the mass shooting in San Bernardino, California late last year. The F.B.I. and the U.S. Department of Justice want Apple to enable them to access information on the phone to facilitate the government’s investigation of the shooting, while Apple refuses to do so on the grounds that it would weaken the security and privacy of all other iPhone users.
Our interest in the story is not related to search warrants or the fourth amendment, but rather how the story touches on ever-increasing employer access to employee communications. The individual in question was an employee of the San Bernardino County Department of Public Health, and the iPhone at the heart of the dispute was owned by the county and provided to Mr. Farook as a county employee. Millions of employees in the United States communicate using employer-provided cell phones, desktop computers, laptops, or tablets, and many more connect to the internet at work on their own personal electronic devices using the employer’s Wi-Fi. While the vast majority of these communications are not made in the furtherance of criminal activity, many may concern disputes between the employer and the employee.
Most employees underestimate the amount of access that employers have to their electronic communications. At this point in time, if an employee is connecting to the internet using a device provided to them by the employer, it is safe to say that the employer has the ability to monitor that employee’s internet usage on that device. The same goes for any emails sent through the employer’s email server. Employees are frequently disciplined for what the employer considers inappropriate use of their electronic devices – this can range from viewing pornography at work, to shopping online, to sending non work-related emails.
Employee privacy rights in this area are not well defined; in New York, a bill is pending before the legislature that would require employers to provide written notice to employees of the types of electronic monitoring that may occur in the workplace. However, employees in New York should not get their hopes up, as similar versions of this bill were introduced in previous legislative sessions and failed to pass. Accordingly, employees using employer-provided devices should assume that those devices are being monitored at all times.
Extensive employer control over employee communications also means that employers frequently have the upper hand in employment disputes. If, for example, an employee brings suit against her employer alleging that she was terminated in retaliation for complaining of sexual harassment, she likely no longer has access to her company email account. If she received harassing or retaliatory emails on that account, she will have to rely on the employer to produce them. Although the employer would have a legal obligation to do so, their compliance is not guaranteed. Thus, the employee who is being discriminated against by her employer on devices controlled by that employer is in a quandary: she may want to preserve those communications in some way, but the employer would likely be able to detect the forwarding of an email, and the employer may have internal policies governing company information that she risks violating.
The matter of electronic communication in the workplace is multifaceted, and there are no easy answers to the questions it creates. If you believe you have been discriminated against in the workplace, contact The Harman Firm, LLP.