Suits In The WorkPlace

No Privacy for Workplace Porn

I have a great concept for a reality TV show: “Employees Do the Darndest Things.” Or maybe "Stupid is as Stupid Does," with apologies to Mr. Gump. A recurring storyline would have to involve the privacy rights employees think they have. A recent Ninth Circuit case could be featured, where the court held kiddie porn on a manager’s workplace computer was admissible in his criminal trial (United States v. Ziegler, No. 05-30177, 8/8/06). The court did not allow the employee to invoke the protections of the Fourth Amendment because the computers were company-owned and the company’s policies included routine Internet monitoring, a right of company access and prohibition against private use.

You would think employees would realize that when it comes to workplace computers, Big Brother is often watching. After the FBI discovered Ziegler had accessed child-porn Web sites from his workplace computer, the employer’s IT department claimed (and the FBI denied) that the FBI told them to copy Ziegler's hard drive. The employer turned over Ziegler's computer and copies of the hard drive. The FBI found images of child pornography and Ziegler was sentenced to two-year’s probation and a fine of $1,000.

Although company ownership of the employee’s computer alone was insufficient to defeat an expectation of privacy, the Ninth Circuit decision still leaves the ball in the employer’s court, for without a reasonable expectation of privacy, Ziegler's hard drive was fair game. Ziegler’s expectation of privacy was not seen as reasonable because he was aware of his employer's policy and practice of monitoring Internet activity. “[A] criminal defendant may invoke the protections of the Fourth Amendment only if he can show that he had a legitimate expectation of privacy in the place searched or the item seized”. Pointing to social norms, Ziegler’s expectation of privacy was not seen as “reasonable” because “[e]mployer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.”

So, in determining whether Mr. Ziegler would be crowned the next American Idiot, let's look at his behavior. One, he accessed child porn - egregious enough on its own. Two, he was a manager, expected to set a good example for his employees, instead of an example of what not do to. Three, he used his office computer to engage in this behavior. (Insert your own image of a dunce cap here). And finally, he had the audacity to argue that his web-based workplace frolic was private, and therefore inadmissible. No question, as far as I'm concerned, that he is this week's winner.

Although not a civil employment case, this one presents a critical (yet often overlooked) lesson for employers: make sure you have a policy covering the monitoring of electronic communications. Despite the decision Lou discussed here, it matters. Especially in the Ninth Circuit. Moreover, although the case didn't address it, make sure your policy is broad enough to cover evolving communication methods, such as Instant Messaging, blogging, and text messaging. Early adopters of email and internet acceptable use policies may not have written the policies to include such technology, so they should be reviewed and updated regularly.

They're Not Called "Judges" For Nothing ...

     Every now and then I read an employment case that gives me a Homer Simpson moment -- I want to slap my forehead and go "D'Oh!"  The Michigan Supreme Court issued a recent opinion in which it upheld the highly unusual sanction of complete dismissal of a plaintiff's case because the plaintiff and her attorneys decided they didn't have to listen to the trial judge on the issue of pretrial publicity. 

     The plaintiff, a Ford employee, sued Ford alleging that a supervisor sexually harassed her in violation of state law.  This guy must have been some supervisor, because he was the subject of two other Michigan Supreme Court opinions on sexual harassment, as well.  Hint to employers--when your management team begins appearing in Supreme Court opinions, it's time to call the headhunter.

     In any event, the supervisor had a 1995 conviction for indecent exposure.  The trial court specifically excluded the conviction from evidence.  The plaintiff appealed the ruling and the state court of appeals and Supreme Court denied the plaintiff's application. 

     Shortly after a directed verdict for Ford in one of the other cases involving the supervisor, the plaintiff's lawyer issued a press release on firm letterhead referring to the indecent exposure conviction, the court's exclusion of the conviction as evidence, and her pending trial.  Seeing double-barreled sensationalism--sexual harassment involving a Ford supervisor coupled with sexual perversity--the news media embraced the press release with open arms and a series of articles, TV and radio broadcasts followed. 

     The full effect of this, of course, was to taint any available jury pool with the knowledge that the supervisor had this conviction.  Unfortunately, the indecent exposure conviction was expunged shortly after plaintiff's attempt to poison the jury pool, which meant the evidence was really inadmissible.

     Nevertheless, plaintiff and her attorneys continued to beat the media drum about the conviction.  When the court held a hearing to deal with the matter, and advised the plaintiff that her conduct violated a state law that criminalized publication of an expunged conviction, the plaintiff simply said it was worth the risk to continue to publicize the matter.  To prove it, her lawyers walked out of the courtroom into a press conference (which they set up prior to the hearing) and again made public comments about the conviction and its exclusion at trial. 

     Not content with this, plaintiff and her lawyers also referenced the excluded evidence in a free weekly publication that was readily available in the courthouse.  At a rally they convened outside two Ford plants, the lawyers distributed leaflets to the crowd containing information about the expunged conviction, evidence about the supervisor's behavior towards other Ford employees that had also been ruled inadmissible, and a statement that the trial judge was "in Ford's pocket" and was trying to "keep the truth out of the courtroom."  

    At the end of all this, the judge dismissed the case with prejudice, determining that the plaintiff and her counsel engaged in premeditated misconduct designed to tamper with the administration of justice and that no lesser sanction would deter them.  D'Oh!

     The Supreme Court of Michigan upheld the judge's decision. The Court noted that despite the trial judge's explicit warning to plaintiff and her attorneys that he would sanction continued publication of the excluded evidence to potential jury pool members, they continued to do so.  The Court stated that a trial judge had an obligation to control and manage the integrity of the judicial process and of the court itself.     

     This apparently comes as a surprise to nobody but the plaintiff and her attorneys, and perhaps the two dissenting judges.  When one party repeatedly violates Michigan court rules, Michigan state law, and Michigan rules for attorney conduct, in an effort to taint the jury pool, there doesn't seem to be much of an option for the trial court except to kill the case.

    For those of you worried about a small detail called the First Amendment, the U.S. Supreme Court has categorically held that free speech rights do not extend to speech designed or that has a substantial likelihood to materially prejudice judicial proceedings.  That's what happened in this case.  What I find even more interesting is the fact that the plaintiff's attorneys felt they could bad mouth state court judges in the press repeatedly with no effect on their pending litigation.  Righteous indignation or not, this kind of conduct is clearly sanctionable because it strikes at the heart of the judicial process.  I'm just surprised the Supreme Court didn't order suspension or disbarment for the attorneys involved.

Think Your Computer Privacy Policy Works?

    Guess again.   A recent case out of New York, Curto v. Medical World Communications, holds that an employee does not waive the attorney-client privilege with regard to documents and communications on her company laptop.  This despite a clear company policy stating that employees do not have any expectations or privacy in their communications on the company's computer system, that the computer system belongs to the company, that it can be used only for business purposes and that the company is entitled to access and review communications on the computer system.

     Before you run out and start viewing pornography on your notebook WiFi connection, note some key facts.  The plaintiff worked primarily out of her home office using company-issued laptops.  She sent and received electronic communications from her lawyer relating to an EEOC complaint on these computers, but did it through her own private AOL account, rather than the company's e-mail system.  She also deleted the communications when she returned the laptops to her employer.  Two years later, when the company used a forensic consultant to restore and retrieve some of the deleted communications, the employee claimed privilege and demanded that the communications be returned.  The company, citing the e-mail policy, said that she had no expectation of privacy in her use of the company computer and that any privilege was waived.

     The court disagreed and specifically noted the above facts.  This is a very narrow decision, particularly because of the generally special nature that attorney-client communications have with judges.  The court also noted that the company had not regularly enforced its privacy policy (although how one "enforces" a privacy policy if not by occasionally looking at someone's computer is another matter) and that this "failure" had created a false sense of security among company employees that, in fact, their privacy would be protected.

     This is an unusual case, and I don't see it as much of a trendsetter.  Nevertheless, companies may want to occasionally run random checks on random computers in their network (and publicize that fact) to make sure everyone knows that the policy is to be taken seriously.