Ballard Briefing
Somebody’s Watching Me:
The Legal and Practical Issues of
Employee Monitoring
April 14, 2010
1735 Market Street, 42nd Floor
Philadelphia, PA 19103
Ballard Briefing
Somebody’s Watching Me:
The Legal and Practical Issues of Employee Monitoring
April 14, 2010
Speakers:
Mary Theresa Metzler
Partner, Labor and Employment Group
Patricia A. Smith
Partner, Labor and Employment Group
Materials:
Outline
PowerPoint Presentation
Presenter Profiles
Labor and Employment Group
Firm Information
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OUTLINE
Somebody’s Watching Me:
The Legal and Practical Issues of
Employee Monitoring
April 14, 2010
By: Mary Theresa Metzler, Esquire, and Patricia A. Smith, Esquire
THIS OUTLINE IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE
LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR
INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF
COUNSEL.
I. Introduction
Surveillance has become an inescapable reality in
today’s technological age. Whether it’s Michael
Phelps being photographed using drugs on a camera
phone, or the City of Chicago proclaiming its desire to
put a video camera on every street corner, more and
more frequently we have become the subjects of
surveillance and simultaneously rely on surveillance to
deter and document unwelcome activity. Within the
context of employment, employers are using
surveillance more frequently as both a deterrent and
investigative tool. The proliferation of surveillance in
the workplace, however, does not come without
controversy and contention. This outline will provide
an overview of the many issues employers must
consider when confronting the issues surrounding
surveillance in the workplace.
II. Methods of Surveillance
A. Video
1. Video surveillance is commonly used in the
workplace because it is generally accurate and
inexpensive.
2. Employers typically use video surveillance as a
means of deterring unwelcome conduct and for
investigative purposes.
3. The California Supreme Court recently
addressed the case of an employer who
installed a concealed video surveillance camera
in the office of two office clerical workers.
Hernandez v. Hillsides Inc., 211 P.3d 1063
(Cal. 2009).
a. The employer, a provider of residential
child care, learned that someone had been
using two computers in its facility to view
pornographic websites late at night. One of
the computers was located in the shared
office of two employees. The two
employees worked during the day and were
not suspected of any wrongdoing.
b. The video equipment was installed out of
view and was connected to a motion
detector. The equipment was always
disabled during the day while the two
employees were working. The video
equipment did not have any sound
recording capability. After three weeks of
surveillance, the employer found that the
equipment had not recorded any late-night
entry into the office and decided to stop
using the equipment. Before they did,
however, the two clerical employees found
the equipment.
c. The two employees brought a state court
lawsuit against the employer, alleging an
invasion of their privacy. The California
Supreme Court found that the plaintiffs
could establish that the employer had
intentionally intruded into a “place,
conversation or matter” in which the
plaintiffs had a reasonable expectation of
privacy.
d. However, in looking at the surrounding
circumstances to determine whether the
intrusion occurred “in a manner highly
offensive to a reasonable person,” the
Court found that the employer’s conduct
was not sufficiently offensive or egregious
to be legally actionable. For example, the
employer took a measured approach by
aiming the camera directly at the computer
that had been used for pornographic
viewing and had already decided to take it
down when it was discovered.
Additionally, the employer was careful not
to activate the equipment during business
hours.
B. Audio
1. Audio surveillance, such as monitoring
employees’ telephone calls, may violate
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state and federal wiretap laws. See
Section III.D. below.
2. Informing employees that their phone calls
may be monitored for training, evaluation, and
supervision purposes may mitigate an
employer’s liability for invasion of privacy
claims brought by employees. See Griffin v.
City of Milwaukee, 74 F.3d 824 (7th Cir.
1996).
C. Computers and E-mail Systems
1. A 2007 Electronic Monitoring and
Surveillance Survey from the American
Management Association and the ePolicy
Institute (“2007 Monitoring Survey”) reported
that 43% of employers monitored computer
files and employee e-mail. In 1997, the
numbers were 13.7% and 14.9%, respectively.
a. More than 1/4 of employers reported
having fired workers for misusing e-mail
and nearly 1/3 have fired employees for
misusing the Internet.
2. E-mail systems furnished and operated by an
employer are usually considered property of
the employer. In The Register Guard, 351
NLRB No. 70, 183 LRRM 1113 (2007), the
Board held that an employer’s policy that
barred employees from using the employer’s
e-mail system for non job-related solicitations
did not per se violate the National Labor
Relations Act. An employer, however, cannot
enforce such a law discriminatorily. RegisterGuard v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)
(remanding the case to the NLRB after setting
aside the Board’s decision that an unfair labor
practice had not occurred when the employer
disciplined an employee for sending a unionrelated e-mail).
3. In 2008, a New Jersey court held that, as a
general matter, an employee has no legitimate
expectation of privacy in information he stores
on office computers, even though that
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information is personal in nature and protected
by confidential passwords created by the
employee. State of New Jersey v. M.A., 954
A.2d 503 (N.J. Super. App. Div. 2008).
a. However, the New Jersey Supreme Court
recently held that an employee retained a
privacy interest in e-mail communications
exchanged with her attorney using her
company laptop, where she used her
personal, password-protected, web-based email account. Stengart v. Loving Care
Agency, 2010 N.J. LEXIS 241 (N.J. 2010).
D. Timekeeping
1. Employers may use employees’ timecards or
access cards as a way of monitoring
movements throughout worksite.
2. An employer did not violate its collective
bargaining contract when it used data
generated by its card swipe security system to
confirm its suspicions that employees were
returning to the office to use computers for
personal business and the employer, in the
course of investigation of suspected
misconduct, had reasonable cause to question
claims and submitted time records. Moreover,
since the employees involved were aware that
such information was being electronically
generated and was available to employer, the
employer’s use of such information was not
contrary to the contract. Michigan Education
Association, 124 LA 1322 (Arb. Daniel, 2007).
E. Global Positioning Systems (“GPS”)
1. Employers may use GPS tracking in a variety
of ways to monitor their employees’
movements.
a. Cell Phones and Mobile Devices
GPS technology can be found in portable
objects such as cell phones, laptops,
Blackberrys, and PDAs. GPS tracking is
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easily achieved by the use of employer
issued devices.
b. Vehicles
Employers may place GPS tracking devices
in company vehicles to ensure that
employees are making required site checks,
deliveries, or conducting other remote
operations.
c. Badges
Tags and badges may carry a GPS signal
allowing employers to monitor the
movements of their employees both on-site
and off-site.
2. According to the 2007 Monitoring Survey, 3%
of employers surveyed used GPS technology to
track employees through cell phones and 8%
used it to track employer vehicles.
3. The Connecticut Supreme Court recently
decided that the City of Bridgeport, CT
violated a state law on electronic monitoring
when it secretly installed GPS tracking devices
in the vehicles used by fire inspectors. Gerardi
v. Bridgeport, Conn., 294 Conn. 461 (Conn.
2010).
a. Connecticut has a statute that requires that
prior written notice be given to all
employees who may be affected by
electronic monitoring. When the City of
Bridgeport installed GPS devices into its
new cars, it did not inform employees
about the equipment or warn them that they
might be subjected to electronic
surveillance.
b. When two employees were disciplined
after their movements were monitored,
they brought a lawsuit against the City.
The Court found that, even though the City
had violated a state law, the statute did not
provide for a private right of action by
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employees who might be subject to
monitoring.
F. Private Investigator
1. Employers generally have the right to conduct
surveillance, surreptitious or not, of an
employee based on “previously developed
suspicions.”
2. Employers use private investigators to monitor
employee theft, corporate espionage, drugs in
the workplace, and other activities that are
deemed harmful to the employer’s interests.
3. The courts have long held that the use of
undercover investigators and labor spies during
organizing campaigns is an unfair labor
practice because such activity is coercive and
intentionally pries into union affairs. See
Bethlehem Steel Co. v. NLRB, 120 F.2d 641
(D.C. Cir. 1941).
4. At least one arbitrator has held that the use of
private checkers to follow truck drivers and
monitor their work performance was within the
employer’s management rights. Kroger Co.,
40 LA 316, 317-18 (Arb. Reid, 1963).
G. Text Messages
1. Some devices that employers provide to
employees – cell phones, blackberries – have
text messaging capabilities. As texting
becomes an increasingly common way for
people to communicate, issues have emerged.
2. In June 2008, the Ninth Circuit ruled that a city
in California violated plaintiffs’ constitutional
rights to privacy when it reviewed text
messages sent and received by an employee.
Quon v. Arch Wireless Operating Co., et al,
529 F.3d 892 (9th Cir. 2008).
a. The City of Ontario, California distributed
wireless text-messaging pagers to its
employees, including employees in the
Police Department. The City’s “Computer
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Usage, Internet and E-mail Policy,” which
specifically stated that users of the Internet
and e-mail on the City’s network “should
have no expectation of privacy or
confidentiality when using these
resources,” was silent when it came to
pagers. The Police Department, however,
held a meeting shortly after the pagers were
issued and informed employees that, for
purposes of the policy, pagers would be
treated the same as e-mails.
b. The City had an informal policy of
requiring employees to pay overage
charges whenever an employee went over
25,000 characters in any month. After
many months of overage charges, the Chief
of Police ordered his Lieutenant to request
transcripts of the pages to audit whether the
texts were work-related or of a personal
nature. The purpose of the audit was to
determine whether the Police Department
should increase the number of characters it
permitted to its officers. During the audit,
the Lieutenant learned that many of the
messages sent and received by one
Sergeant, Sergeant Quon, were personal in
nature and often sexually explicit.
c. Quon filed a lawsuit against the City, the
Police Department, and the Chief, alleging
violations of his Fourth Amendment rights
to be free from unreasonable search and
seizure. In addressing Quon’s reasonable
expectation of privacy, it looked to the
Police Department’s policies regarding
privacy of text messages. The Court
acknowledged that Quon signed the
computer usage policy and that Quon
attended the meeting in which attendees
were informed that the policy applied to the
use of pagers. The Court observed,
however, that, in practice, the Lieutenant
charged with monitoring overages told
Quon and other officers that the Lieutenant
would not audit their pagers as long as the
officers agreed to pay for any overages.
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Furthermore, every time that Quon
exceeded his allotted characters, he paid for
the overages without anyone reviewing the
content of the messages. Therefore, the
Court found that Quon had a reasonable
expectation of privacy.
d. As to whether the search was reasonable,
the Court determined that there were less
obtrusive ways for the Police Department
to determine the effectiveness of the 25,000
character limit without violating privacy
rights, i.e., warning Quon that he was
forbidden from using the pager for personal
reasons and that his messages would be
reviewed for a month to insure he was
following that rule, or the Police
Department could have asked Quon to
redact personal messages and grant
permission to the Department to review the
redacted transcript.
3. The U.S. Supreme Court recently agreed to
take this case on appeal and will address the
issue of whether Sergeant Quon had a
reasonable expectation of privacy in text
messages transmitted on a department-issued
pager. The City, in its petition for Supreme
Court review, took the position that the Ninth
Circuit’s decision was inconsistent with the
Supreme Court’s decision in O’Connor v.
Ortega, as discussed in Section E.1. below.
H. Internet, Social Networking, and Blogging
1. Many employees use and/or maintain social
networking sites (such as MySpace, Facebook,
and Linked In), personal websites, web blogs,
and/or similar internet media.
2. According to the 2007 Monitoring Survey,
66% of employers monitor Internet
connections, 12% of employers monitor the
blogosphere to see what is being written about
the company, and 10% monitor social
networking sites.
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3. Such monitoring may implicate wiretapping
statutes and/or privacy concerns, See Pietrylo
v. Hillstone Restaurant Group, 2009 U.S. Dist.
LEXIS 88702, (D. N.J. 2009) below, Section
III.G.
III. Legal Issues
A. Obligation to Bargain
1. Private Sector
a. Construing the National Labor Relations
Act (“NLRA”), the National Labor
Relations Board (“NLRB”) has clearly
determined that the installation and use of
video cameras to observe employees and/or
areas used by employees is a mandatory
subject of bargaining. The NLRB first
announced this rule in Colgate-Palmolive
Co., 323 NLRB 515 (1997), a case in
which the employer installed hidden
cameras in response to an increase in
workplace thefts.
(1) The NLRB likened video surveillance
to other types of employee monitoring,
such as physical examinations, drug
testing, and polygraph testing, all of
which have been found to be
mandatory subjects of bargaining. Id.
The NLRB declared that each
constituted “investigatory tools or
methods used by an employer to
ascertain whether any of its employees
has engaged in misconduct.” Id.
(2) The NLRB concluded that video
surveillance “is the type of
management decision that is almost
exclusively an aspect of the relationship
between the employer and employees
and, as to such decisions, there is an
obligation to bargain.” Id.; see also,
Nat’l. Steel Corp., 335 NLRB 747
(2001), aff’d 324 F.3d 928 (7th Cir.
2003) (reaffirming that employers must
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bargain over the use of hidden cameras,
but also noting that the bargaining
requirement does not preclude the
parties from reaching an accord that
preserves the secrecy and effectiveness
of covert surveillance to investigate
misconduct).
b. In 2004, the NLRB reaffirmed that an
employer violates the NLRA when it fails
to give notice to, and bargain with, the
union prior to the installation and use of
surveillance cameras. Anheuser-Busch
Inc., 342 NLRB 560, 175 LRRM 1168
(2004) aff’d in part 414 F.3d 36 (D.C. Cir.
2005). The Board specifically rejected the
employer’s argument that the bargaining
obligation should not attach to cameras
used to investigate specific incidents of
misconduct and preserve internal security.
c. In Saint Barnabas Medical Center, 1999
NLRB LEXIS 582 (1999), nurses were
required to wear tracking devices in their
uniform badges in order to improve patient
comfort and care. The devices had not yet
been used for discipline and had even been
used twice to exonerate nurses from claims
by patients that the nurses were not where
they were supposed to be. However, the
determinative factor for the NLRB was that
the new system had the capability – the
potential – of leading to discipline.
Therefore, it was a bargainable issue
touching on the terms and conditions of
employment.
2. Public Sector
a. Unlike the NLRB, the Pennsylvania Labor
Relations Board (“PLRB”) has not
articulated a clear rule regarding the use of
video cameras under Act 195 and Act 111.
In an early decision on the topic, a hearing
examiner determined that the installation of
video cameras in employee work areas,
even under Act 111’s broader test for
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mandatory subjects of bargaining,
remained a managerial prerogative. East
Pennsboro Twp., 28 PPER 28015 (1996).
b. In light of the East Pennsboro Twp.
decision, when the State System of Higher
Education (“SSHE”) installed a video
camera in a bathroom area at one of its
universities to investigate vandalism, the
union did not allege a failure to bargain
over the installation of the video camera.
Instead, it responded by filing a complaint
limited to SSHE’s failure to meet and
discuss its decision to use the cameras and
its failure to impact bargain over the
potential use of the camera in disciplinary
proceedings. SSHE, 30 PPER 30057
(1999). The hearing examiner determined
that SSHE had violated its obligation to
meet and discuss the installation of the
camera with AFSCME. The hearing
examiner, however, rejected AFSCME’s
claim for impact bargaining, finding that
there was no evidence that the employees
were subjected to any different measure of
discipline due to the installation of the
camera.
c. Since the decision in SSHE, the PLRB has
not directly resolved the question of
whether the installation of video cameras is
a mandatory subject of bargaining under
Act 195.
(1) In Lehigh County, 32 PPER 32, 174
(PDO 2002) the employer installed
video cameras in prison areas where
corrections officers worked. AFSCME
filed a complaint alleging, among other
things, failure to bargain the decision to
install the cameras. At the hearing,
however, AFSCME retracted this claim
and the issue was not addressed by the
hearing examiner.
(2) In Richland Township, 33 PPER
33,130 (PDO 2002) the Township
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announced its plan to install video
cameras in police cars. The union
demanded bargaining over the
Township’s decision to install the
cameras, and the Township acquiesced.
Thereafter, the union filed a complaint
arguing that the installation of the
cameras (including certain audio
components) was retaliatory and
constituted unlawful interference. The
union’s claims were dismissed.
d. In Oil City Area School Dist., 34 PPER 31
(PDO 2003) the employer and the union
reached an agreement on the use of footage
obtained through video surveillance in
classrooms, including an affirmation that it
would not be used in teacher evaluations.
In light of the existing agreement, when the
employer began utilizing footage for
discipline and evaluations, the union’s
complaint was limited to the employer’s
breach of the existing agreement, as well as
an impact bargaining claim. The hearing
examiner held that the employer had
committed an unfair labor practice by
violating the established agreement on the
use of cameras, but that no impact
bargaining obligation arose as the
installation of the cameras did not alter the
existing disciplinary policy or procedures.
3. Remedies for Unlawful Employer Surveillance
a. Employers may not be required to reinstate
employees who have been disciplined for
cause even if the evidence gathered in
making the disciplinary decision was
obtained unlawfully.
(1) During a routine inspection, AnheuserBusch discovered foam pads, cardboard
mats, a table, and four chairs in a
rooftop room housing elevator motors.
Suspecting that employees might be
using the room for drug activity, the
company installed hidden surveillance
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cameras in a stairwell leading to the
room, the room itself, and a rooftop
area accessible only by passing through
the room. The company did not notify
Teamsters Local 6, the union that
represented the workers.
(2) During a six week period in the
summer of 1998, the cameras recorded
the activities of 18 employees. The day
after the cameras were removed, the
company told the union about the
surveillance activities. The company
then interviewed the employees, who
admitted their conduct after being told
that it was recorded on videotape. The
company disciplined 16 of the
employees, terminating five of them,
suspending 11, and giving last-chance
warnings to 7. The union responded by
alleging, among other things, that the
company engaged in an unfair labor
practice by failing to bargain over the
installation of the cameras.
(3) The NLRB held that the company
violated Section 8(a)(5) of the NLRA
when it installed the cameras without
bargaining with the union. AnheuserBusch, Inc., 342 NLRB 560 (2004),
aff’d in part 414 F.3d 36 (D.C. Cir.
2005). The Board, however, denied the
union’s request for make whole relief
(on remand, the Board reaffirmed its
position and the employees were denied
make whole relief because they had
engaged in misconduct, a remedy for
which was precluded by the NLRA).
(4) On appeal, the D.C. Circuit affirmed
the Board’s determination that the
installation of video surveillance
cameras was a mandatory subject of
bargaining. The Court, however,
remanded to the Board to reconsider its
denial of make-whole relief.
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(5) On remand, the Board once again
concluded that the workers were not
entitled to make-whole relief because
they “each engaged in misconduct
warranting the discipline” and because
the discipline was not imposed for a
prohibited activity, such as union
activity, the discipline was permissible
because the “meaning of the phrase ‘for
cause’ does not include an inquiry into
the source of the employer’s knowledge
of the misconduct.” Anheuser-Busch
Companies, Inc., 351 NLRB 644
(2007), petition for review denied sub
nom. Brewers & Malters, Local Union
No. 6 v. NLRB, 2008 WL 5378003
(D.C. Cir. Dec. 8, 2008).
b. If an employer conducts surveillance on its
employees without bargaining, it may be
required to disclose its surveillance
activities to the union. In Nat’l Steel Corp.,
335 NLRB 747 (2001), the NLRB
concluded that the employer committed an
unfair labor practice by placing a
surveillance camera in an office in order to
identify the employee who had been
making long-distance phone calls from that
office. In order to alleviate the union’s
confidentiality concerns, the NLRB
ordered the employer to provide the union
with policy and procedure information
relating to the use of the hidden cameras.
Id. at 752. Further, the NLRB also
required the employer to begin bargaining
with the union regarding the use of the
cameras.
B. Video Surveillance of Union Activities
1. Striking
a. Generally, videotaping or photographing
employees engaged in lawful picketing
violates the NLRA because it has a
tendency to intimidate. F.W. Woolworth,
310 N.L.R.B. 1197 (1993); Timken Co.,
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331 N.L.R.B. No. 86 (2000). Videotaping
or photographing may be permissible,
however, if the employer has a proper
justification for doing so.
b. A proper purpose for photographing
picketing employees exists when the
photographs are taken for the purpose of
gathering evidence, and there is no
showing of coercion of the employees.
Roadway Express, 271 NLRB 1238, 1244
(1984).
c. In making the initial determination whether
an employer violated the NLRA by
videotaping employees, the ALJ must
consider whether the employer’s proffered
reasons were legitimate. Beverly Health &
Rehabilitation Services v. NLRB, 317 F.3d
316 (D.C. Cir. 2003). In Beverly Health &
Rehabilitation Services the court reversed
the Board’s holding that the employer
committed an unfair labor practice when it
videotaped employees leafleting
immediately prior to a strike. The court
concluded that the employer had
demonstrated a legitimate reason to
videotape the leafleting because the
employer reasonably believed that the
employees were trespassing on the
employer’s property when they were
leafleting. Therefore, this evidence
gathering was appropriate.
2. Organizing
a. An employer may videotape union activity
if there is a legitimate interest to do so and
it is not done merely to coerce or intimidate
union activity. Employers may engage in
video surveillance of protected union
activity if they have a legitimate security
interest. Nat’l Steel and Shipping Co. v.
NLRB, 156 F.3d 1268, 1271 (D.C. Cir.
1998) (holding “an employer's legitimate
security interests may justify its use of
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surveillance cameras, even if they happen
to capture protected activities.”).
(1) However, an employer must
demonstrate that it has a “reasonable
basis” to have anticipated misconduct
by employees when engaging in
anticipatory photographing/
videotaping. “The inquiry is whether
the photographing or videotaping has a
reasonable tendency to interfere with
protected activity under the
circumstances of each case[,]” and
whether the employer had a reasonable
basis to engage in surveillance. Wash.
Fruit and Produce Co. v. Int’l
Brotherhood of Teamsters, 343 NLRB
1215, 1217 (NLRB 2004) (finding that
employer was justified in videotaping
union rally where employer knew there
was going to be a union demonstration
involving a large number of people in
front of its offices, and where it had
“every reason to expect that there
would be, at the very least, trespassing
by union supporters and organizers on [
] [its] property” and where there had
been prior incidents of trespass.); but
see Roberto Orr-Sysco Food Services,
334 NLRB 977, 978 (2001)
(surveillance was not reasonable where
demonstration took place “two turns
away from [employer’s driveway].”).
b. An employer may also use video
surveillance in order to prepare for legal
proceedings. Id. (holding that “gathering
evidence for use in legal proceedings also
constitutes a sufficient justification for
videotaping protected activities.”). In
United Food and Commercial Workers
Union Local 204 v. NLRB, 506 F.3d 1078,
1085 (D.C. Cir. 2007), the court affirmed
the Board’s holding that the employer did
not unlawfully videotape union organizers
distributing handbills because the employer
sought only to protect its property from the
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union organizers and “gather and preserve
evidence” of the trespassing.
c. In Snap-On Tools, Inc., 175 LRRM 1124,
n.5 (NLRB June 16, 2004) the NLRB held
that the employer violated Section 8(a)(1)
of the NLRA when it changed its security
procedures and fixed a previously panning
camera upon a specific location where
hand billing activity was taking place
solely to monitor that activity.
C. Tortious Invasion of Privacy
1. Employees seeking redress from their
employers for the employers’ surveillance
actions have frequently sued under a tort
known as intrusion on seclusion. Intrusion on
seclusion occurs where “one who intentionally
intrudes, physically or otherwise, upon the
seclusion of another of his private affairs or
concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would
be highly offensive to a reasonable person.”
Restatement (Second) of Torts § 652(b).
2. A review of reported cases from across the
country indicates that so long as the
employer’s surveillance is conducted in a
common area, the employer will not be subject
to liability for invasion of privacy. See VegaRodriquez v. Puerto Rico Telephone Co., 110
F.3d 174 (1st Cir. 1997) (involving a public
employer and finding that employer’s use of
video surveillance over shared workspaces and
common areas did not give rise to an action for
invasion of privacy); Thompson v. Johnson
County Cmty. Coll., 930 F. Supp. 501 (D. Kan.
1996) (video surveillance by employer over
shared workspaces and common areas did not
constitute an actionable invasion of privacy);
Marrs v. Marriott Corp., 830 F. Supp. 274 (D.
Md. 1992) (video surveillance by an employer
in open common area did not give rise to an
action for invasion of privacy).
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3. However, video surveillance in areas such as
employee restrooms, where the employee has
an expectation of privacy, will give rise to
employees’ invasion of privacy claims.
Cramer v. Consol. Freightways, Inc., 255 F.3d
683 (9th Cir. 2001) (surreptitious surveillance
inside employees’ restrooms with video and
audio devices as well as two-way mirrors in
the restrooms gave rise to actionable claims by
union employees for invasion of privacy that
were not preempted by the LMRA); Care v.
Reading Hosp. and Med. Ctr., 2004 U.S. Dist.
LEXIS 5485 (E.D. Pa. 2004) (finding that the
surreptitious recording of an employee could
be actionable as an invasion of privacy).
4. The Third Circuit in Kline v. Sec. Gds., Inc.,
386 F.3d 246 (3d Cir. 2004), remanded without
deciding the validity of state claims for
invasion of privacy to state court where
employer installed an audio and video
surveillance system in an entryway where
employees punched in at its facility.
D. Wiretapping Statutes
1. Federal Wiretapping Laws
a. The Electronic Communications Privacy
Act of 1986 (“ECPA”) amended Title III of
the Omnibus Crime Control and Safe
Streets Act of 1968 (the “Wiretap Act”), 18
U.S.C. § 2510-2710.
b. The purpose of the ECPA is two-fold:
(1) to prevent and deter improper invasions
of privacy and (2) to provide for
compensation if such improper invasions
occur. Zweibon v. Mitchell. 444 F. Supp.
1296 (D.D.C. 1978), aff’d in part rev’d in
part, 196 U.S. App. D.C. 265 (1979).
c. Title III of the Wiretap Act allows
employers to monitor the conversations of
employees, provided this is done in the
19
ordinary course of an employer’s business.
See 18 U.S.C. § 2510 (5). In order to
intercept the oral communication:
(1) The interception must be made with
equipment furnished in the ordinary
course of business by a wire
communications service; and
(2) It is used in the ordinary course of the
employer’s business.
(3) The extension telephone exception does
not require the consent of either party
to the communication.
(4) However, if the communication is
personal, rather than business, in
nature, the employer must immediately
discontinue monitoring. Watkins v.
L.M. Berry & Co., 704 F.2d 577 (11th
Cir. 1983). If employees consent to
interception of calls, then such
interception is valid under the statute.
Consent, however, can be limited, i.e.,
where an employee consented to
employer eavesdropping to determine
only that the nature of the call is
personal, any eavesdropping by the
employer beyond that, or beyond what
is necessary to guard against
inappropriate use of the telephone, is
unlawful under Title III.
(5) Title III also permits an employer to
intercept an employee’s communication
when one of the parties directly
participating in the conversation
consents. 18 U.S.C. § 2511(2)(d). See
also, James v. Newspaper Agency
Corp., 591 F.2d 579 (10th Cir. 1979).
d. The ECPA expanded the protections of the
Wiretap Act to include all electronic
communications transmitted by wire, radio,
electromagnetic, photoelectric, or photo-
20
optic system. “E-mail” is therefore covered
by the Wiretap Act.
(1) Title I of the ECPA protects electronic
communications in transit.
(2) More importantly for our purposes,
Title II of the ECPA, the Stored
Communications Act (“SCA”), protects
stored communications-- in basic terms,
it protects electronic information after
receipt.
e. Under the ECPA and SCA it would appear
at first blush that an employer monitoring
employees’ e-mail would typically violate
the Act. However, two provisions of
ECPA indicate that employer monitoring of
e-mail communications on the company's
on-line computer system would not be a
violation of either law.
(1) Section 2701 of the SCA exempts a
person or entity that provides a wire or
electronic communication service from
liability if the information accessed is a
stored private communication.
Therefore, if an employer is the
provider of the service, which it often
is, the employer may monitor any
activity or communication after it has
been sent. Bohack v. City of Reno, 932
F.Supp. 1232, 1236 (D. Nev. 1996)
(finding that where the communications
at issue were sent over the City’s
computer system, it was allowed to do
as it wished with regard to accessing
communications in electronic storage
as the “service provider” under federal
wiretapping law; though implying that
if there had been interception at the
time of transmission, the exception
might not apply). This, exemption,
however, may not apply to initial
interception of an employee’s e-mail
communication at the time it is sent.
21
(2) The ECPA also allows an employer to
disclose the contents of an employee's
electronic communications if doing so
is necessarily incident to retention of
the service or to protection of the rights
or property of the service provider (e.g,
the employer). See 18 U.S.C. §
2702(b).
f. In short, ECPA and SCA allow an
employer to monitor employees’ e-mail
stored on in-house company computer
systems after transmission of the e-mails
occurs. Monitoring prior to storage, i.e.
interception may, however, trigger liability.
g. However, in third party situations,
employers may not be so lucky under the
SCA. For instance, in Pietrylo v. Hillstone
Restaurant Group, 2009 U.S. Dist. LEXIS
88702, No. 06-5754 (D. N.J. 2009), SCA
liability was found where an employer
examined postings by employees on a
Myspace discussion board, even though
one of the employees who was granted
permission to access the page showed it to
the employer. The case turned on the fact
that the employee who showed the
Myspace page to her employer claimed at
trial that she did not voluntarily consent to
do so but was pressured to share it because
she thought she might get into trouble if
she refused her employer. Because the
disclosure was thus not consensual, the
court held that a jury could find liability on
the evidence presented and upheld the jury
verdict of SCA liability against the
employer. (Although damages were
nominal, the plaintiffs sought over
$125,000 in attorneys fees).
h. Courts have also found that employer
monitoring of employee e-mail in a
“personal folder” on a workplace computer
is not an invasion of privacy. See McLaren
v. Microsoft Corp., 1999 Tex. App. LEXIS
4103.13 (TX 1999) (“The company's
22
interest in preventing inappropriate and
unprofessional comments, or even illegal
activity, over its e-mail system would
outweigh [plaintiff’s] claimed privacy
interest in those communications”).
However, this by itself would not
necessarily preclude liability under the
SCA or ECPA.
i. In Garrity v. John Hancock Mutual Life
Insurance Company, 2002 U.S. Dist.
LEXIS 8343 (D. Mass. 2002), the court
rejected plaintiffs’ claims of a reasonable
expectation of privacy based on the fact
that they had personal passwords and email folders. The court held that “even if
plaintiffs had a reasonable expectation of
privacy in their work e-mail, defendant’s
legitimate business interest in protecting its
employees from harassment in the
workplace would likely trump plaintiffs'
privacy interests.” Id. at 6.
2. Pennsylvania Wiretapping Laws
a. The Pennsylvania Wiretapping and
Electronic Surveillance Control Act
(“Pennsylvania Wiretapping Act”) is the
state-law equivalent to the ECPA. It
provides for criminal and civil penalties
against unlawful wiretaps.
b. Pennsylvania law permits the provider of
an electronic communications system to
intercept communication in the normal
course of employment which is necessary
to the protection of the rights or property of
the provider. 18 Pa. Cons. Stat. Ann. §
704(l).
c. Pennsylvania law further permits the
interception of electronic communications
so long as all parties consent. 18 Pa. Cons.
Stat. Ann. § 5704(4). One way to ensure
this exception applies is to promulgate a
policy to employees stating that e-mail and
23
other electronic communications sent over
work computers are subject to monitoring.
3. New Jersey Wiretapping Laws
a. The New Jersey Wiretapping and
Electronic Surveillance Control Act (“New
Jersey Wiretapping Act”) is the state-law
equivalent of the ECPA and provides that
interception of wire, electronic or oral
communications is illegal. See N.J. Stat.
Ann. § 2A-156A-3.
b. The New Jersey Wiretapping Act, like the
ECPA, contains an exception for consent.
See N.J. Stat. Ann. § 2A-156A-4(d). This
exception provides that it is not unlawful
for “a person not acting under color of law
to intercept…communication, where such a
person is party to the communication or
one of the parties to the communication has
given prior consent to such interception…”
This exception does not apply if the
communication is intercepted or used for
the purpose of committing any criminal,
tortious, or injurious act. Also, the Act
makes clear that the fact that someone is
subscriber to a particular telephone does
not constitute consent to authorize
interception of communications.
c. Like the ECPA and Pennsylvania
Wiretapping Act, the New Jersey
Wiretapping Act also contains an exception
for a “provider” of a wire or electronic
communication service to intercept
communication “in the normal course
of…employment” which is necessary “to
the rendition of his service or to the
protection of the rights or property of the
provider…” See N.J. Stat. Ann. § 2A156A-4(a).
d. New Jersey courts are divided on whether
the New Jersey Wiretapping Act applies to
stored e-mails. See White v. White, 344
N.J. Super. 211 (Ch. Div. 2001)
24
(determining that the Wiretapping Act does
not apply to “electronic communications
received by the recipient, placed in posttransmission storage, and then accessed by
another without authorization”); contra
State v. Gaikwad, 349 N.J. Super. 62 (App.
Div. 2002) (holding that the Act applies to
stored e-mails).
4. Wrongful Termination for violation of Privacy
Rights due to Electronic Surveillance
a. Assurances of privacy may not be
problematic for an employer with regard to
e-mail communications (however, see
Section III(D) (discussing wiretapping
statutes that may restrict employer access
to employee e-mail and other electronic
communications)). In Smyth v. Pillsbury
Co., 914 F. Supp. 97 (E.D. Pa. 1996), a
plaintiff argued that his termination was
wrongful because it was based on
information obtained from e-mail messages
in violation of his privacy rights. The court
rejected this argument, stating: “Once
plaintiff communicated the alleged
unprofessional comments to a second
person (his supervisor) over an e-mail
system which was apparently utilized by
the entire company, any reasonable
expectation of privacy was lost.” Id. at
101.
(1) This was true despite the fact that the
employer had repeatedly told its
employees that all workplace e-mail
communications would be kept
confidential and privileged.
(2) The court stated that even if the
employee’s privacy rights were
violated, “the company’s interest in
preventing inappropriate and
unprofessional comments or even
illegal activity over its e-mail system
25
outweighs any privacy interest the
employee may have in those comments.
(3) It should be noted, however, that this
case involved offensive and
disparaging e-mails, wherein the
employee made threats to “kill the
backstabbing bastards” regarding
management and likened the company
holiday party to the “Jim Jones Kool
Aid affair.” Where less offensive emails were involved, a court might
have reached a different outcome.
E.
Fourth Amendment Concerns for Public
Employers
1. Although a search by a public employer is
different than one conducted by a law
enforcement agency, searches and seizures by
governmental employers of the private
property of their employees are still subject to
the constraints of the Fourth Amendment of the
United States Constitution. O’Connor v.
Ortega, 480 U.S. 709 (1987).
a. Ortega was a physician employed by a state
hospital. While he was on administrative
leave pending an investigation of charges
involving sexual harassment and
inappropriate discipline, hospital officials
searched his office and seized personal
items from his desk and file cabinets that
were used in administrative proceedings
resulting in his discharge. Ortega filed suit
under 42 U.S.C. § 1983, alleging that the
search of his office violated the Fourth
Amendment.
b. The Court determined that searches and
seizures by government employers or
supervisors of the private property of
employees are subject to the Fourth
Amendment, but under a governing legal
standard looking to “reasonableness” of the
search under all of the circumstances.
26
c. However, given that not all of the privacy
expectations of public employees would be
reasonable, and given the great variety of
work environments in the public sector, the
determination of reasonable expectation of
privacy must be addressed on a case-bycase basis.
2. So what is “private” for public employees?
a. The workplace is generally defined as
those areas related to work and within the
employer’s control, including offices,
desks and file cabinets.
b. Although the Fourth Amendment applies to
public employers, the operational realities
of the workplace make some employer
intrusions reasonable. Thus, “noninvestigatory work-related intrusions” and
investigatory searches for evidence of
work-related employee misfeasance are
acceptable where they are reasonable under
the circumstances. O’Connor, 480 U.S.
709 at 726. The search is reasonable where
there are reasonable grounds for suspecting
the search will turn up evidence that the
employee is guilty of work-related
misconduct.
c. Public employers are also permitted “wide
latitude” to enter offices for work-related,
non-investigatory reasons. Id. at 723.
d. Moreover, requiring probable cause
standards for all searches of this nature
would impose intolerable burdens on
public employers. Id. at 727.
e. However, the ultimate decision will require
balancing the employee’s legitimate
expectation of privacy against the
government’s need for supervision, control
and efficient operation of the workplace,
looking to:
(1) Reasonableness at inception;
27
(2) Reasonableness in scope;
(3) Reasonableness of any claimed
expectation of privacy.
F.
First Amendment Concerns for Public
Employers
1. Although the First Amendment applies
differently to public employers when they act
as employers rather than sovereigns,
surveillance can constitute an adverse action
such that it can support a retaliation claim for
employees. Anderson v. Davila 125 F.3d 148
(3d Cir. 1997)
a. Applying a line of cases supporting First
Amendment retaliation claims where the
official action took the form of denying
some form of government benefit, the
Davila court found that surveillance of a
former employee as a result of his filing a
discrimination lawsuit was actionable
under the First Amendment. Although the
case involved a former employee, it
certainly would support such a claim for a
current employee as well, so long as
surveillance has, or could have, a chilling
effect on employees seeking remedial
action by courts or other governmental
agencies.
b. Vearling v. Bensalem Township School
District, 1997 U.S. Dist. LEXIS 3103 (E.D.
Pa. 1997), similarly found that a claim by a
current employee that his employer
engaged in surveillance as a result of his
running for office and writing public letters
criticizing his supervisors, a protected first
amendment activity, was also actionable as
retaliation, only dismissing the claim
because the employee failed to establish
any evidence of surveillance. Vearling,
1997 U.S. Dist. LEXIS 3103.
c. In Kowalski v. Scott, 2004 U.S. Dist.
LEXIS 9935 (E.D. Pa. 2004), the court also
28
found that surveillance of an employee to
chill his right to file a workers
compensation claim could constitute First
Amendment retaliation, however there, the
employee could not establish a causal
connection because the claims had been
filed and the employer only engaged in the
surveillance to prepare a defense to the
claim. Kowalski, 2004 U.S. Dist. LEXIS
9935.
d. But, there must be actual surveillance.
Munday v. Waste Mgmt., 126 F.3d 239,
243 (4th Cir. 1997) cert. denied, 522 U.S.
1116, 118 S. Ct. 1053, 140 L. Ed. 2d 116
(1998) (employer's instruction to other
employees that they spy on plaintiff did not
constitute adverse employment action);
Woods v. Bentsen, 889 F. Supp. 179, 188
(E.D.Pa. 1995) (being watched more
closely does not constitute retaliation).
G. Statutes Limiting Employer Surveillance
1. Many states, including California, Rhode
Island, Connecticut, and Delaware, have
enacted statutes that either require employers
to disclose their use of video surveillance or, in
cases of surveillance in a bathroom, locker
room, or other changing area where the
expectation of privacy is high, require a court
order before video surveillance can occur.
2. Federal laws, such as the Notice of Electronic
Monitoring Act and the Employee Changing
Room Privacy Act, have been introduced in
Congress in recent years. Although none of
these laws have been enacted, it is likely that
President Obama will support laws that protect
employees’ privacy.
IV. Discipline of Employees Based on Surveillance
A. Theft of Time
The videotape surveillance evidence of a driver
purportedly showing him wasting time did not
29
establish just cause for the employee’s discharge
because the tapes were edited, they did not show
his movements throughout day, and they did not
show whether he was doing work other than
deliveries, such as sorting packages, when he was
parked. United Parcel Service, 121 LA 207 (Arb.
Wolff 2005).
B. Fraudulent Leave
1. An employer may use surveillance on its
employees in certain circumstances when it
believes that the employee is abusing his/her
Family Medical Leave Act (“FMLA”) leave.
2. In Vail v. Raybestos Products Co., 533 F.3d
904 (7th Cir., 2008), an employer's clandestine
surveillance of an off-duty police officer
provided the employer with an honest
suspicion that an employee was not using her
medical leave for the intended purpose of the
leave due to her migraine headaches. Thus, the
plaintiff employee's claim that the employer
interfered with her FMLA rights by
terminating her for abuse of leave was
precluded. The officer saw the employee
working for her husband's lawn-mowing
business the next morning after she had taken
medical leave for her evening shift claiming
that she could not work for 24 hours due to her
blood pressure medication.
3. The Sixth Circuit has expressly rejected the
Seventh Circuit’s “honest belief” test and has
required an employer to demonstrate an honest
belief plus particularized facts supporting the
employer’s reasoned decision to take action
against employees believed to have been
dishonest with regard to their FMLA leave
requests. Smith v. Chrysler Corp., 155 F.3d
799 (6th Cir. 1998).
C. Dishonesty
A wholesale produce supply company properly
charged its employee with dishonesty, even
though videotape evidence showed a customer
30
placing four extra cartons with produce on a
pallet, but did not convincingly depict employee
observation of the customer’s activities. In this
situation there was reasonable evidence that the
employee knew the customer was taking the goods
along with the video evidence. Here the employee
loaded pallet before customer added produce,
additional cartons are readily noticeable and made
pallet appear unbalanced, no reasonable employee,
particularly employee with 18 years of loading
experience, would have failed to notice addition of
cartons, and the employee had a duty to account
for the missing product, have customer
acknowledge additional order, and notify
management of the customer’s actions if he
thought the customer was merely amending the
order. Wholesale Produce Supply Co., 101 LA
1101 (Arb. Bognanno, 1993).
D. Violating Work Rules
A hotel that installed a secret video camera
because of fear of theft was entitled to rely in
arbitration on tapes of discharged employee
having sex with her supervisor in banquet office,
to which at least 12 other employees had keys.
The arbitrator concluded that because the hotel
had legitimate concern over such sexual activity
and had legitimate property rights in tapes, the
voluntary participation in sexual activity on
company premises constituted consent to limited
invasion of privacy. The arbitrator further held
that the tapes need not be destroyed after the
arbitration, but the hotel acts at its peril if the
sexually graphic tapes were in any way misused.
Wyndham Franklin Plaza Hotel, 105 LA 186
(Arb. Duff, 1995).
V. Evidentiary Issues in Arbitration
A. Authenticity Concerns
An arbitrator can decline to reopen a hearing to
consider whether the use of post-production
editing technology was used in the video tape the
employer offered in evidence, where union could
have raised the issue prior to hearing, during the
31
hearing, or before an extended due date of posthearing briefs. Furthermore, the video tapes were
accepted into evidence for purpose of having
witnesses point out items in the hall and time
clock areas and were not a pivotal item in the
arbitrator’s decision. Tyson Foods, Inc., 105 LA
1119 (Arb. Moore, 1996).
B. Accuracy Concerns
The videotape evidence of employee, who was on
disability leave, purportedly doing construction
work, was held to be admissible, even though it
was not corroborated by any witnesses, because
the employee admitted to the activity depicted in
the video tape. Solutia Inc., 121 LA 26 (Arb.
Szuter, 2005).
32
Somebody’s Watching Me
Issues in Workplace Surveillance
Mary Theresa Metzler, Esquire
Patricia A. Smith, Esquire
Introduction
•
Methods of Surveillance
•
Legal Considerations
•
-
Obligation to Bargain
-
Surveillance of Union Activities
-
Tortious Invasion of Privacy
-
Wiretapping Statutes
-
Constitutional Concerns
Discipline of Employees and Evidentiary Issues
2
Methods of Surveillance
3
1
Methods of Surveillance
•
Video
•
Audio
•
Computers and E-mail Systems
•
Timekeeping
•
Global Positioning Systems (“GPS”)
•
Private Investigators
•
Text Messages
•
Internet, Social Networking, and Blogging
4
Video
•
Video surveillance is commonly used in the workplace
because it is generally accurate and inexpensive.
•
Employers typically use video surveillance as a means of
deterring unwelcome conduct and for investigative
purposes.
5
Audio
•
Audio surveillance, such as monitoring employees’
telephone calls, may violate state and federal wiretap laws.
•
Informing employees that their phone calls may be
monitored for training, evaluation, and supervision
purposes may mitigate an employer’s liability for invasion
of privacy claims brought by employees. See Griffin v.
City of Milwaukee, 74 F.3d 824 (7th Cir. 1996).
6
2
Computers and E-mail Systems
•
In a 2007 survey, 43% of employers surveyed
acknowledged that they monitored computer files and
employee e-mail.
-
In 1997, the numbers were 13.7% (computer files) and 14.9%
(employee e-mail)
•
More than 25% of employers reported having fired
workers for misusing e-mail.
•
Almost 33% of employers fired employees for misusing
the Internet.
Source: 2007 Electronic Monitoring and Surveillance Survey from the American
Management Association and the ePolicy Institute
7
Computers and E-mail Systems
•
E-mail systems provided and operated by an employer will
usually be considered property of the employer.
•
The NLRB has held that an employer’s policy that bars
employees from using the employer’s e-mail system for
non job-related solicitations did not per se violate the
National Labor Relations Act.
•
An employer, however, cannot enforce such a policy in a
discriminatory way.
-
Register-Guard, 351 NLRB No. 70, 183 LRRM 1113 (2007)
-
Register-Guard v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)
8
Timekeeping
•
Employers may use employees’ timecards or access cards
as a way of monitoring movements throughout worksite.
9
3
Global Positioning Systems (“GPS”)
•
•
•
GPS tracking:
- Cell phones and mobile devices
- Vehicles
- Badges
In 2007, 3% of employers surveyed used GPS technology to track
employees through cell phones and 8% used it to track employer
vehicles.
The Connecticut Supreme Court recently ruled that the City of
Bridgeport, CT violated a state law on electronic monitoring when it
secretly installed GPS tracking devices in the vehicles used by fire
inspectors.
- Gerardi v. Bridgeport, Conn., 294 Conn. 461 (Conn. 2010)
10
Private Investigator
•
Employers generally have the right to conduct
surveillance, surreptitious or not, of an employee based on
“previously developed suspicions.”
•
Employers use private investigators to monitor employee
theft, corporate espionage, drugs in the workplace, and
other activities that are deemed harmful to the employer’s
interests.
•
The courts have long held that the use of undercover
investigators and labor spies during organizing campaigns
is an unfair labor practice because such activity is coercive
and intentionally pries into union affairs. See Bethlehem
Steel Co. v. NLRB, 120 F.2d 641 (D.C. Cir. 1941).
11
Text Messages
•
Many devices that employers provide to employees have
text messaging capabilities.
•
Employers need to adapt to issues that arise from this
increasingly-common form of communication.
•
In June 2008, the Ninth Circuit ruled that a city in
California violated plaintiff’s constitutional right to
privacy when it reviewed text messages sent and received
by an employee.
-
•
Quon v. Arch Wireless Operating Co., et al, 529 F.3d 892 (9th
Cir. 2008)
The Quon case is now before the U.S. Supreme Court.
12
4
Internet, Social Networking, and Blogging
•
Many employees use and/or maintain social networking sites (such as
MySpace, Facebook, and Linked In), personal websites, web blogs,
and/or similar internet media.
•
According to the 2007 Monitoring Survey, 66% of employers
monitor Internet connections, 12% of employers monitor the
blogosphere to see what is being written about the company, and
10% monitor social networking sites.
•
Such monitoring may implicate wiretapping statutes and/or privacy
concerns.
-
Pietrylo v. Hillstone Restaurant Group, 2009 U.S. Dist. LEXIS 88702,
(D. N.J. 2009)
13
Legal Issues
14
Obligation to Bargain
•
•
Mandatory Subject?
-
The NLRB has determined that the installation and use of video
cameras to observe employees and/or areas used by employees is
a mandatory subject of bargaining.
-
The PLRB has not articulated a clear rule under Act 195 and Act
111.
Remedies for Unlawful Employer Surveillance
-
Anheuser-Busch, Inc., 342 NLRB 560, 175 LRRM 1168 (2004)
aff’d in part 414 F.3d 36 (D.C. Cir. 2005)
15
5
Surveillance of Union Activities
•
Generally unlawful under NLRB precedent.
•
Employer must have a legitimate reason to do so (e.g. for
security purposes or to gather evidence of
inappropriate/unlawful activity).
•
Surveillance cannot be coercive.
16
Tortious Invasion of Privacy
•
Four types, but employees typically file “intrusion on
seclusion” claims
•
Safest bet – conduct surveillance in common area to avoid
invasion of privacy claims
17
Wiretapping Laws
•
•
State Laws
-
Pennsylvania Wiretapping Act
-
New Jersey Wiretapping Act
Federal Law
-
Title III of the Omnibus Crime Control and Safe Streets Act of
1968
-
Electronic Communications Privacy Act (ECPA) – amends Title
III to include e-mail, among other things
-
Stored Communications Act (SCA) – part of the ECPA, protects
“stored” electronic communications, e.g. e-mail stored in your
inbox after transmission.
18
6
Wrongful Discharge for Violation of Privacy Rights
Due to Surveillance
•
Smyth v. Pillsbury, Co., 914 F. Supp. 97 (E.D. Pa. 1996)
-
No reasonable expectation of privacy when e-mails were sent
using an e-mail system used by entire company
•
-
Good result for employer but could go differently under different
set of facts
Electronic communication privacy policy may help here to
minimize liability
19
Fourth Amendment Rights in the Workplace
•
O’Connor v. Ortega, 480 U.S. 709 (1987)
-
Reasonableness standard for workplace searches and seizures
-
Case by case analysis
-
Employee’s legitimate expectation of privacy must be balanced
against the government’s need for supervision, control and
efficient operation of the workplace; thus, courts look to:
•
Reasonableness of search at inception;
•
Reasonableness in scope;
•
Reasonableness of any claimed expectation of privacy.
20
First Amendment Concerns When Conducting
Employee Surveillance
•
Surveillance can constitute actionable retaliation under
certain circumstances.
•
Cannot have a chilling effect on employees’ right to seek
redress from governmental agencies or the courts (e.g.
filing a discrimination complaint)
•
Must be actual surveillance
•
As with other retaliation claims, employee must establish
causal connection.
21
7
Statutes Limiting Employer Surveillance
•
Statutes are currently in force in California, Delaware, Rhode Island
and Connecticut.
•
Currently none in force in Pennsylvania, however there are pending
bills dealing with the issue:
-
House Bill 1298 of 2009 – would require notice to conduct any
electronic monitoring of employees at work
-
House Bill 1175 of 2009 – regulates the implantation of
electronic devices into individuals
-
Senate Bill 363 of 2009 – would require notice to conduct any
electronic monitoring of employees at work
-
Senate Bill 662 of 2009 – would require notice to employees of
telephone monitoring
22
Discipline Based on Surveillance
•
ISSUES IN LITIGATION
-
Theft of Time
-
Fraudulent Leave
-
Dishonesty
-
Violating Work Rules
-
Evidentiary Issues in Arbitration
•
Authenticity
•
Accuracy
23
8
Presenter Profiles
Practice Areas
• Labor and
Employment
• Litigation
• Health Care
• Appellate
Education
• University of
Pittsburgh School of
Law J.D. 1979
• University of
Pennsylvania B.A.
1976
Admitted To
Practice
• Pennsylvania 1979
Mary Theresa Metzler
Partner
51st Floor
1735 Market Street
Philadelphia, PA 19103-7599
Direct: 215.864.8242
Fax: 215.864.9151
[email protected]
Mary Theresa Metzler is a partner in the Litigation Department and a member of the
Labor and Employment; Health Care; and Appellate Groups. Ms. Metzler
concentrates her practice in private and public sector employment and labor law on
behalf of management. A heavy focus of her practice is in traditional labor law,
involving employer campaigns in union organizing attempts, collective bargaining
negotiations, labor arbitrations, unfair labor practice proceedings, representation
cases, and general labor relations issues. Her practice also involves the defense of
employers charged with Title VII violations, including race, national origin, sex,
religious, and reverse discrimination.
Ms. Metzler also counsels clients on age discrimination cases and sexual harassment
investigations and issues. On a regular basis, she handles proceedings before the
NLRB and Pennsylvania Labor Relations Board, labor arbitrators, the EEOC, the
Pennsylvania Human Relations Commission, and other similar government agencies.
Her advice covers issues related to the FMLA, FLSA, ADA, and other personnelrelated matters. She also conducts training on a variety of employment issues,
including workplace privacy issues (electronic technology), EEO, hiring, and
discipline practices.
Ms. Metzler frequently lectures on various labor and employment topics, including email and privacy issues, wage and hour laws, FMLA, and hiring and discipline
practices. She is a member of the American Bar Association (Section of Labor and
Employment Law), the Pennsylvania Bar Association, and the Philadelphia Bar
Association (Business Law Section). Ms. Metzler has also received an AV Peer
Review Rating from Martindale-Hubbell, an honor indicating an attorney has
reached the height of professional excellence.
Before entering private practice, Ms. Metzler was an attorney at the Pittsburgh office
of the National Labor Relations Board and in-house counsel at Duquesne Light Co.
She is admitted to practice in the U.S. Supreme Court, the U.S. Court of Appeals for
the Third Circuit, the U.S. District Courts for the Eastern and Western Districts of
Pennsylvania, the Pennsylvania Supreme Court, and Pennsylvania (1979).
Ms. Metzler is a graduate of the University of Pennsylvania (B.A. 1976) and the
University of Pittsburgh School of Law (J.D., cum laude, 1979), where she was elected
to the Order of the Coif.
Ballard Spahr LLP
Presenter Profiles
Practice Areas
• Litigation
• Labor and
Employment
• Health Care
Education
• Rutgers, The State
University of New
Jersey School of
Law-Camden J.D.
1981
• Rowan University
B.A. 1973
Admitted To
Practice
• New Jersey 1982
• Pennsylvania 1981
Patricia A. Smith
Partner
Plaza 1000 - Suite 500
Main Street
Voorhees, NJ 08043-4636
Direct: 856.873.5521
Fax: 856.761.1020
[email protected]
Patricia A. Smith is a partner in the Litigation Department and a member of the
Labor and Employment Group and Health Care Group. A veteran litigator, Ms.
Smith has significant jury trial experience in state and federal courts. Ms. Smith also
prepares affirmative action programs and represents clients during government
audits and investigations. She has an active ERISA litigation practice and counsels
employers on avoiding and resolving employment-related problems.
Ms. Smith represents management in all areas of employment and labor law and
litigation. She has experience in a variety of industries, including computers,
construction, health care, transportation, oil refining, manufacturing, and
commercial lending. Ms. Smith regularly provides advice and counseling to
employers concerning the implementation of reductions in force and other difficult
employment decisions. She also practices traditional labor law and has handled
numerous arbitrations, union organizing campaigns, collective bargaining
negotiations, and unfair labor practice charges.
Ms. Smith has received an AV Peer Review Rating from Martindale-Hubbell, an
honor indicating an attorney has reached the height of professional excellence.
Representative Engagements
• Successfully defended a nationally recognized construction company before a jury
in two age-discrimination employment suits
• Successfully defended numerous claims of employment discrimination and
retaliation claims on the basis of race, sex, age, disability, national origin, and
whistleblower status in numerous state and federal courts throughout the country
• Successfully defended ERISA individual and class action matters
• Develops and implements strategies to preserve confidential corporate
information and to avoid the loss of valuable employees to competitors
Ballard Spahr LLP
Presenter Profiles
• Successfully obtains and enforces temporary restraining orders and injunctions in
connection with massive strike activity
Ms. Smith regularly provides advice and counseling to employers concerning the
implementation of reductions in force and other difficult employment decisions. She
has lectured and written widely on numerous employment law topics, including
sexual harassment, defamation, employee piracy, and union avoidance, and has
experience in a variety of industries, including computers, construction, health care,
transportation, oil refining, manufacturing, and commercial lending.
Ms. Smith is listed in the 2007 through 2009 editions of Chambers USA: America’s
Leading Lawyers for Business, a directory built primarily on client interviews, as a leader
in the field of labor and employment law. She regularly speaks before business, bar,
and community groups on labor and employment law topics, including before the
American Bar Association, the New Jersey Institute for Continuing Legal Education,
and the Council on Management.
Ms. Smith is a graduate of Rowan University (B.A., magna cum laude, 1973) and
Rutgers, The State University of New Jersey School of Law-Camden (J.D., cum laude,
1981).
Ballard Spahr LLP
Labor and Employment Practice Description
Labor and Employment Group
Our Labor and Employment Group has experience in counseling and litigating an
array of labor, employment, and ERISA matters in the public, private, profit, and
nonprofit sectors and in representing a large variety of industries. The types of
matters we handle regularly include:
• Representation of employers in collective bargaining negotiations; interest
arbitration; private and AAA labor arbitration; NLRA and state labor law
compliance issues; the labor implications of mergers, acquisitions, and asset
purchases; strike prevention and control; union campaigns; union-free training
of management and supervisors; and unfair labor practice proceedings before
the NLRB and state labor boards
• Employment discrimination advice and defense of claims on grounds of
protected class membership, such as age, race, gender, sexual orientation,
disability, religion, national origin, and sexual harassment; and Equal Pay Act
claims
• Preparation and defense of affirmative action plans under Executive Order
11246 and other federal and state laws, including advice on implementation of
monitoring processes; plan analyses and drafting; and advice, counseling, and
litigation over OFCCP audits
• ERISA and other employee benefits advice and litigation, including
administrative claims appeals; breach of fiduciary duty claims; litigation of
benefit claims and interference with protected rights; ERISA preemption; and
plan design counseling for litigation avoidance and defense
• Defense of class action and collective action cases, including claims of wage and
hour violations brought against employers
• Defense of at-will employment, wrongful discharge, and employment tort
claims
• Design and implementation of corporate-wide HR and labor strategies and
initiatives
Ballard Spahr LLP
Labor and Employment Practice Description
• Preparation of, and advice and litigation concerning, employment agreements,
executive compensation programs, restrictive covenants and trade secret
agreements, and employment terminations
• Advice and litigation on behalf of public employers such as cities, states, school
districts, authorities, and municipalities in traditional labor and employment
matters, as well as under specialized labor laws regarding police, fire, and other
personnel (e.g., Heart and Lung Act and civil service laws)
• Training of managers and employees on topics such as sexual harassment, EEO
compliance, ADA, FMLA, chronic absenteeism, managing the difficult
employee, health and safety compliance, hiring, interviewing, and wage and hour
compliance
• Review and legal audit of personnel policies, manuals, and employment forms;
formulation of personnel policies, such as FMLA and applicable state leave
laws; sexual harassment; drug and alcohol abuse and testing; privacy rights; and
ADA compliance
• Advice concerning OSHA and state health and safety laws, including
compliance and self-audits; governmental investigations and citations;
negotiations with OSHA; and litigation before the OSHRC and the courts
• Wage and hour investigations and FLSA advice
• Reduction in force design, counseling, and litigation, including WARN
compliance, early- exit programs, severance pay, and effective use of releases
Ballard Spahr LLP
Firm Overview
General Firm Information
Atlanta
Tel: 678.420.9300
Fax: 678.420.9301
999 Peachtree Street
Suite 1000
Atlanta, GA 30309-3915
Baltimore
Tel: 410.528.5600
Fax: 410.528.5650
300 East Lombard Street
18th Floor
Baltimore, MD 21202-3268
Bethesda
Tel: 301.664.6200
Fax: 301.664.6299
4800 Montgomery Lane
7th Floor
Bethesda, MD 20814-3401
Denver
Tel: 303.292.2400
Fax: 303.296.3956
1225 17th Street, Suite 2300
Denver, CO 80202-5596
Las Vegas
Tel: 702.471.7000
Fax: 702.471.7070
100 North City Parkway
Suite 1750
Las Vegas, NV 89106-4617
Los Angeles
Tel: 424.204.4400
Fax: 424.204.4350
2029 Century Park East
Suite 800
Los Angeles, CA 90067
Ballard Spahr LLP
Ballard Spahr LLP traces its origins to 1885 and became known as “Ballard and
Spahr” in the early 1900s, when Ellis Ames Ballard and Boyd Lee Spahr began
practicing law together. Today, we remain dedicated to our founders’ fundamental
guiding principle—excellence in the practice of law.
We have grown to be one of the largest law firms in the country, with more than
475 lawyers and 12 offices located throughout the United States. As a large,
multipractice, multiregional law firm, we are able to combine a national scope of
practice with strong regional market knowledge to represent companies,
individuals, and other entities in virtually every state and around the world.
The firm is a limited liability partnership, owned by its partners and managed by a
board of directors selected by the partners of the firm and headed by a
chairperson. There have been no changes in ownership structure during the past
two years.
Practices
• Antitrust
• Environmental
• Bankruptcy, Reorganization and
• Family Wealth Management
Capital Recovery
• Business and Finance
•
Investment Management
•
Mergers and
Acquisitions/Private Equity
•
Securities
•
Transactional Finance
• Consumer Financial Services
• Corporate and Government
Investigations and White Collar
Defense
• Employee Benefits and Executive
Compensation
• Franchise and Distribution
• Government Relations and
Regulatory Affairs
• Health Care
• Intellectual Property
•
Patents
•
Trademarks and Copyrights
•
Trade Secrets
•
Entertainment and Media
•
Intellectual Property Litigation
• International
• Labor and Employment
Firm Overview
New Jersey
Tel: 856.761.3400
Fax: 856.761.1020
Plaza 1000, Suite 500
Main Street
Voorhees, NJ 08043-4636
Philadelphia
Tel: 215.665.8500
Fax: 215.864.8999
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Phoenix
Tel: 602.798.5400
Fax: 602.798.5595
3300 Tower, Suite 1800
3300 North Central Avenue
Phoenix, AZ 85012-2518
Salt Lake City
Tel: 801.531.3000
Fax: 801.531.3001
One Utah Center, Suite 800
201 South Main Street
Salt Lake City, UT 84111-2221
Washington, DC
Tel: 202.661.2200
Fax: 202.661.2299
601 13th Street, N.W.
Suite 1000 South
Washington, DC 20005-3807
Wilmington
Tel: 302.252.4465
Fax: 302.252.4466
919 North Market Street
12th Floor
Wilmington, DE 19801-3034
www.ballardspahr.com
Ballard Spahr LLP
• Litigation
•
•
•
•
•
•
•
•
•
Accounting and Professional
Liability
Appellate
Complex Commercial
Litigation
Construction Dispute
Resolution
Consumer Class Action
Litigation
Consumer Financial Services
Intellectual Property Litigation
Product Liability and Mass
Tort
Securities Litigation
• P3/Infrastructure
• Public Finance
• Real Estate
•
•
•
•
•
•
•
•
•
•
Construction
Eminent Domain
Housing
Planned Communities and
Condominiums
Real Estate Development
Real Estate Finance
Real Estate Leasing
Real Estate Tax
Resort and Hotel
Zoning and Land Use
• Tax
•
•
Nonprofit Organizations
Public Finance
• Tax Credits
• Water Rights
Industries
• Communications
• Energy and Project Finance
• Higher Education
• Insurance
• Life Sciences/Technology
Initiatives
• Climate Change and Sustainability
• Distressed Real Estate
• Economic Stabilization and Recovery
• Health Care Reform