When James Bond Enters the Workplace: Use and Abuses of Technology—A
Guide for In-House Counsel and Litigators
H. David Kelly, Jr., Esq.
Beins, Axelrod, Kraft, Gleason & Gibson
Washington, D.C. **
William A. Herbert, Esq.
CSEA, Local 1000, AFSCME, AFL-CIO
Albany, N.Y.∗
“Tragedy, he perceived, belonged to the ancient time, to a time when there was still privacy,
love, and friendship….” George Orwell, 1984 (Penguin Books 1998).
Introduction
This paper examines the current state of the law in the public and private sectors
regarding employers’ use of intrusive technologies to monitor and control its workforce
including: monitoring of telephone, e-mail and internet use; videotape and photographic
surveillance; drug and alcohol testing; polygraphs; genetic testing; the use of biometrics and
global position systems (GPS) for tracking of employees. Where appropriate distinctions in the
law between private and public employment, and between unionized and unorganized
workplaces, will be highlighted.
We begin with the premise that the availability of such new technologies does not
transform the right to privacy in the workplace into an antiquated concept. The evolution and
development of new technology may present new challenges for the preservation of individual
privacy but does not nullify American libertarian expectations. Nevertheless, as M.I.T. Professor
Gary T. Marx noted fifteen years ago, a very positive technological advancement can lead to
unanticipated intrusive surveillance usages. Marx, Now the Techno-Snoopers Want to Get Into
Our Genes, Los Angeles Times, September 15, 1989.
In the area of labor relations, there is a growing schism between the subjective
expectation of privacy felt by most employees and the increasing desire of employers to utilize
new technologies to monitor and control their workforce. Government and media reports indicate
that there is a growing use of these new technologies to monitor employees. See, U. S.
Government Accounting Office, Employee Privacy: Computer-Use Monitoring Practices and
Policies of Selected Companies, GAO-02-717 (September 2002) (study showed that 14 large
corporations surveyed monitor and store employee e-mail, internet use along with other
computer file activity); Robinson, Big Brother or Modern Management: E-mail Monitoring in
the Private Workplace, 17 Labor Lawyer 311 (2001)(article cites various studies and surveys
showing an increase in employer surveillance); Forelle, On the Road Again, But Now the Boss Is
∗ Mr. Herbert acknowledges the assistance of Albany Law Student Jeffrey Nieznanski in the preparation of this
paper.
** Mr. Kelly acknowledges the assistance of Washington & Lee University School of Law Student Zahid Raja in
the preparation of this paper.
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Sitting Beside You, The Wall Street Journal, May 14, 2004 (article describes increased employer
use of GPS technology to monitor employees). A 1998 study found that 40% of the corporations
studied engage in one or more forms of technologically-based surveillance of its employees. See,
Doyle, Privacy in the Workplace, Scientific American, January 1999.
In contrast, a Canadian study found universal employee opposition to employer
technological surveillance. Immen, Workplace privacy gets day in court, Globe and Mail, April
28, 2004 (article discusses litigation and low morale by Canadian workers related to employer
video surveillance). Professor Marx has suggested one potential means of deflating the gap
between the respective viewpoints of management and labor on the question of technological
surveillance: require equal surveillance of managers and corporate executives. See, Marx, Let’s
Eavesdrop On Managers, Computerworld, April 20, 1992.
The schism between employee privacy expectations and employer technologically based
surveillance is strongest in the private sector, where the current laissez-faire attitude regarding
business regulation makes it unlikely that federal remedial legislation will be enacted to respond
to employer use of technology for workplace surveillance. In addition, the current ability of
private employers to thwart the fundamental statutory right of private sector workers to organize
into labor unions has enabled employers to unilaterally and arbitrarily impose technologically
based monitoring and control of the workforce.
In contrast, in public employment, workers have greater protections against
technologically based intrusive employer practices based on federal and state constitutional
prohibitions against unreasonable searches and seizures by their governmental employers.
Moreover, in various states, public employees have the right under state law to organize
collectively into unions.
As a practical matter, federal and state legislation, as well as judicial rulings, frequently
lag behind the emergence of new technological tools that enable one party to intrude or invade
another’s realm of privacy. In the nineteenth century, federal and state courts appear to have
been requested to make few explorations in the area of workplace privacy. However, the
Supreme Court had little difficulty determining that a named recipient of a letter committed to
the postal system was entitled to expect that it would not be opened in transit or read by others,
in part, based upon the fact that the Founders had objected to the widespread British practice of
opening mail during the colonial era. Ex Parte Jackson, 96 U.S. 727 (1877)(Constitution protects
individual from unauthorized or warrantless examination of their mail).
In 1890, Louis Brandeis co-authored a law review article that is now recognized as the
seminal vehicle for the advancement of the law of privacy in the United States and that led to
judicial recognition of the four privacy torts under common law. See, Samuel Warren and Louis
D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Close to forty years later, in
Olmstead v. United States, 277 U.S. 438, 478 (1928), then Associate Supreme Court Justice
Brandeis penned one of the most enduring dissents. In his dissent, Justice Brandeis described the
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right to be left alone as “the most comprehensive of rights and the right most valued by civilized
men.” Further, he emphasized that in interpreting the United States Constitution, the Court had
an obligation to adapt to a changing world where discovery and invention were providing
government with new tools to intrude into the ‘privacies of life.’ Therefore, he concluded that the
majority had erred in failing to find that the Fourth Amendment’s proscription against
unreasonable search and seizure was applicable to evidence gathered through use of a wiretap on
defendant’s telephone line.
In the past fifty years, the Supreme Court has recognized a constitutionally protected
right to privacy against federal and state legislative intrusions into the intimate affairs of
Americans. See, Griswold v. Connecticut, 381 U.S. 479 (1965)(the landmark decision where the
Court first recognized that individual’s possess a constitutional right of privacy located within
the “zone” of freedoms protected by the Bill of Rights). Two years later, in Katz v.United States,
389 U.S. 347 (1967), the Court held that the warrantless electronic surveillance by law
enforcement of a defendant’s calls from a public telephone booth violated the Constitution, even
though there had been no physical intrusion. In addition, Katz introduced the now familiar test
for evaluating the applicability of the Fourth Amendment to a particular situation: the
“reasonable expectation of privacy test.” This test requires that (1) the person possesses a
subjective expectation of privacy; and (2) the expectation is one that society is prepared to
recognize as ‘reasonable’. Id., (Harlan, J., concurring).
More recently, in Kyllo v. United States, 533 U.S. 27 (2001), the Court, in an opinion
written by Justice Scalia, reversed a conviction that was based on evidence gathered by the
warrantless use of a thermal scanning device on the defendant’s home, concluding that it was an
unreasonable search in violation of the Fourth Amendment. Justice Scalia noted that to hold
otherwise would “leave the homeowner at the mercy of advancing technology.” 533 U.S. at 35.
Similarly, Chief Justice Rehnquist has expressed strong privacy concerns regarding
technologically based access to personal e-mail and telephone conversations. See, Bartnicki v.
Vopper, 532 U.S. 514, 541-42; 167 L.R.R.M. 2199 (2001)(Rehnquist, C.J., dissenting).
Nevertheless, the constitutionally protected right to privacy is not without its critics among those
who subscribe to the original intent theory of constitutional interpretation. See, Bork, The
Tempting of America, (The Free Press, 1990).
Constitutional Protections of Privacy for Public Employees
1. Public Employees’ Reasonable Expectation of Privacy
The U.S. Supreme Court has recognized that the federal constitutional prohibition against
unlawful searches and seizures, contained in the Fourth Amendment, protects a public
employee’s reasonable expectation of privacy in the workplace: “Individuals do not lose Fourth
Amendment rights merely because they work for the government instead of a private employer.”
O’Connor v. Ortega, 480 U.S. 709, 717; 1 BNA IER Cases 1617 (1987). However, the special
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needs of public employers may permit them to dispense with the probable cause and warrant
requirements when conducting an investigation of employee misconduct.
Although O’Connor v. Ortega, supra, involved the physical search of a state employee’s
office and file cabinets, the plurality’s analytical framework is applicable to technologically
based intrusions into public employees’ privacy.
In O’Connor, the Court emphasized that the Fourth Amendment is applicable only when
the employer’s conduct violated “an expectation of privacy that society is prepared to consider
reasonable” (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). This analytical
standard is applied on a case-by-case basis. In addition, an employee must demonstrate that he
or she acted in a manner with respect to the property that indicated a subjective expectation of
privacy. See, Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177 (2d. Cir.
2004).
In determining whether a public employee had a reasonable expectation of privacy under
the Fourth Amendment, courts will consider how the particular area or location in the workplace
has been actually utilized. If the employee has been granted control of a particular location
through a lock or other means, it is probable that a reasonable expectation of privacy will be
found. However, if others frequently access the location it is much less likely that a court will
find that the employee had a reasonable expectation of privacy. 1
In Shaul, supra, the Second Circuit held that a suspended teacher did not have a
reasonable expectation of privacy regarding his personal belongings in his classroom during his
suspension where, after he surrendered the keys to the cabinet, he initially declined an offer to
retrieve his personal belongings from the classroom and was granted a second opportunity to
remove his belongings from the room. Similarly, the Ninth Circuit has held that a civilian
employee of the Navy had no reasonable expectation of privacy regarding the content of his desk
given the tight security maintained by his employer. Schowengerdt v. United States, 944 F.2d
483; 7 BNA IER Cases 462 (9th Cir. 1991), cert. denied, 503 U.S. 951 (1992).
2. Drug and Alcohol Testing
Drug and alcohol testing is a very common form of employer mandated technologically
based intrusion into employee privacy. Despite employer reliance on such testing, laboratory
errors can result in false positive test results. See, Hawkins, Tests on trial, U.S. News, August
12, 2002.
1 States have recognized a similar right to privacy emanating from their state constitutions. See,
e.g., State Emp. Union v. Dept. of Mental Health, 31 Tex. Sup. J. 33, 746 S.W.2d 203
(Tex.1987); California Constitution, Art. I, §1; Florida Constitution, Art. I, §23.
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In public sector employment, the Supreme Court has held that a public employer’s
mandate that an employee provide a urine or blood sample for drug or alcohol testing
constitutes a search and seizure for Fourth Amendment purposes because it intrudes on the
employee’s reasonable expectation of privacy. Treasury Employees v. Von Raab, 489 U.S.
656, 665; 4 BNA IER Cases 246 (1989).
Nevertheless, the Court has also held that with respect to certain safety-sensitive positions, a
public employer’s ‘special needs’ will outweigh an employee’s privacy interest in being free
from such mandatory testing. Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602; 130
L.R.R.M. 2857 (1989)(public employer’s interest in regulating the safe conduct of railroad
employees was found to justify federal rules requiring blood and alcohol testing following all
major accidents); National Treasury Employees Union v. Von Raab, supra. (narrowly upholding
a rule requiring urinalysis of all employees who sought promotion to drug interdiction positions
or where they would carry firearms based on the employer’s interest in having drug enforcement
positions filled by persons who do not use drugs). Cf., Chandler v. Miller, 520 U.S. 305; 12
BNA IER Cases 1233 (1997)(Supreme Court struck down on Fourth Amendment grounds a state
statute requiring candidates for state office to certify they had tested negative in a drug urinalysis
because they did not perform high-risk work).
Both the Fifth and Sixth Circuits have upheld drug testing for public school employees
even when a school district does not have a reasonable suspicion. Knox County Education Ass’n.
v. Knox County Board of Education, 158 F.3d 361, 367; 14 BNA IER Cases 609 (6th Cir. 1998),
cert. denied, 528 U.S. 812 (1999)(permitting suspicionless testing of school teachers because of
their alleged autonomy and the inherent risk posed to children within their reach); Aubrey v.
School Board, Lafayette Parish, 148 F.3d 559; 14 BNA IER Cases 375 (5th Cir. 1998)(finding
that a school custodian alleged no constitutional violation because he worked in a highly
regulated workplace where he could not expect to be free from an employer mandated drug test).
Some state courts, following the Court’s majority in Von Raab, supra, have held that a
public employer’s interest in the integrity of its law enforcement personnel outweighs the
employees’ privacy interests. O’Connor v. Police Comm’r of Boston, 408 Mass. 324; 557 N.E.
2d 1146; 5 BNA IER Cases 1134 (1990)(court concluded that police cadets’ privacy interest
under state law was outweighed by public employer’s compelling interest in determining
whether cadets were using drugs and in deterring such use.); Seelig v. Koehler, 76 N.Y.2d 87,
556 N.E.2d 125, 556 N.Y.S. 2d 832; 5 BNA IER Cases 481 (1990)(court concluded that
municipal employer’s compelling need to deter and detect drug use among correction officers
outweighed the diminished privacy expectations of the prison employees).
Where public employers without ‘special needs’ seek to eliminate the reasonable
suspicion requirement as a predicate for drug and alcohol testing of broad categories of
employees, courts are prepared to reject such efforts. State ex. rel. Ohio AFL-CIO v. Ohio
Bureau of Workers’ Compensation, 97 Ohio St.3d 504, 780 N.E.2d 981; 171 L.R.R.M. 2659 (S.
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Ct. Ohio, 2002)(court struck down, as violative of the Fourth Amendment, a state workers’
compensation law requiring suspicionless drug and alcohol testing for anyone injured on the
job).
Drug and alcohol testing constitutes a mandatory subject of bargaining under the National
Labor Relations Act (NLRA). In Johnson-Bateman Co., 295 NLRB 180, 131 L.R.R.M. 1393
(1989), the National Labor Relations Board (NLRB) held that an employer must bargain with the
union prior to implementing drug and alcohol testing of current employees. Similarly, in the
public sector, the Federal Labor Relations Authority has found that a labor union's proposals
with respect to the procedures to be used for conducting drug testing were negotiable. See,
American Federation of Government Employees, Department of Education Council of AFGE
Locals and U. S. Department of Education, 38 FLRA 1068 (1990).
Finally, various state employment relations boards have held that drug testing constitutes
a subject for collective negotiations. See, City of Detroit, 3 MPER ¶21,040 (1990)(random drug
testing of municipal police officers constitutes a mandatory subject of bargaining); City of
Buffalo, 20 NYPER ¶3048 (1987)(random drug-testing program for probationary employees is a
permissive subject of bargaining and city violated its duty to bargain by unilaterally
implementing the program); County of Nassau, 27 NYPER ¶3054 (1994)(concluding that county
drug testing program for police officers was negotiable where county's interest in detecting and
preventing impairment of its police officers was not so inextricably intertwined with
implementation of testing decision as to outweigh employee's collective and individual interests
in bargaining over various aspects of the implementation decision.); City of St. Petersburgh
Beach, 13 FPER ¶18,116 (1987)(city’s unilateral requirement that firefighter applicants sign preemployment agreements agreeing to be subject to random drug testing violated City’s duty to
negotiate in good faith because the agreements required new employees to waive rights under
collective bargaining agreements).
State Common Law Protections of Privacy
Although private employees are not generally protected by the Fourth Amendment with
regard to their working conditions, they may find protections regarding workplace privacy under
state common or statutory law. In 1880, Judge Cooley, the influential 19th century scholar,
characterized privacy as a protected social value with the phrase ‘the right to be let alone.’2 The
recognition that certain acts that invade an individual’s privacy can constitute an actionable tort
has continued to evolve and is set forth in the Restatement (2d) of Torts, §652 (1977). However,
whether a particular tort has been recognized will depend on the common law as interpreted by a
particular state’s appellate courts. See, Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th
Cir. 2002).
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Cooley, Torts, 2d ed. (1888), 29.
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Various states have recognized causes of action for the intentional tort of invasion of
privacy. However, the scope and elements of an actionable right to privacy will depend on the
jurisdiction. For example, the right to privacy was held to protect an associate attorney’s right to
be free from a law firm partner’s search of his desk and discovery of a letter informing him that
he was HIV positive, where the letter did not involve a work-related matter. Doe v. Kohn, Nast &
Graf, 862 F. Supp. 1310 (E. D. Pa. 1994). In South Dakota, a compensatory damage verdict was
affirmed in favor of a discharged employee who sued successfully for an invasion of privacy
based on a co-worker opening and distributing a letter which related to his termination that had
come to the workplace after he had been terminated. Roth v. Farner-Bocken Co., 2003 SD 80;
667 N.W.2d 651; 20 BNA IER Cases 279 (2003). The right to privacy was also found to support
an award of damages to an employee whose locker and purse were searched by a manager
without her consent, and where the employee had placed her own lock on the locker with her
employer’s knowledge. K-Mart Corp. v. Trotti, 1984 Tex. App. LEXIS 5962, 677 S.W.2d 632
(Tex. Ct. App. 1984), writ of error ref’d, 28 Tex. Sup. J. 202, 686 S.W.2d 593 (Tex. 1985). But
another employee’s state law claim for invasion of privacy for a search of his desk was rejected
where his desk was not locked and contained information used by other employees. O’Bryan v.
KTIV Television, 868 F. Supp. 1146 (N.D. Iowa 1994), aff’d in rel part, rev’d on other grounds,
64 F.3d 1188 (8th Cir. 1995).
Employees may also recover for an employer’s unauthorized disclosures. Bratt v. IBM,
392 Mass. 508, 467 N.E.2d 126 (1984), ans conformed to, 745 F.2d 43 (1st Cir.), appeal after
remand, 785 F.2d 352 (1st Cir. 1986)(employee's right of privacy may be impaired by disclosure
of private facts about employee through intra-corporate communications, and the employer’s
legitimate business interest must be balanced against the nature of the employee’s interest in
determining if there has been unreasonable interference with a protected privacy right); Levias v.
United Airlines, 27 Ohio App.3d 222, 500 N.E.2d 370 (Ohio App. 1985)(employee had viable
tort claim action for public disclosure of private facts when employer disclosed medical
information from her gynecologist to her supervisors and her husband). See also, Darcangelo v.
Verizon Communications, Inc., 292 F.3d 181 (4th Cir. 2002)(court reinstated claim against plan
administrator based on it obtaining and disseminating individual participant’s private medical
information in order to assist former employer’s efforts to declare employee a direct threat to
fellow employees so that she could be fired, where it concluded that the plan administrator’s
conduct was not related to its duties under the plan).
Under the Reinstatement (2d) of Torts (1977), the torts most applicable to privacy in the
workplace include the intentional intrusion upon the solitude of another, §652B, the
unreasonable disclosure of personal facts, publicity which unreasonably places another person in
a false light, §652C, falsely connecting another to an immoral or illegal act that causes damage to
reputation, §652D, and misappropriation of another’s name or likeness causing injury to their
reputation. §652E. The elements of these torts are similar in that there must be intent or
knowledge on the part of the defendant, there must be a showing that there was a reasonable
expectation of privacy, the disclosure must be highly offensive to a reasonable person, and there
must be a communication or publication to the relevant community.
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Limits On Employer Control and Monitoring of Use of Workplace Equipment
In both the public and private sectors, there are limitations on the power of employers to
unilaterally monitor, control and limit employee use of workplace equipment.
1. Reasonable Expectation of Privacy Regarding Work Computers
In Leventhal v. Knapek, 266 F.3d 64; 17 BNA IER Cases 1697 (2d Cir. 2001), the
Second Circuit concluded that a New York State employee had a reasonable expectation of
privacy regarding the content of his workplace computer. In Leventhal, supra, during a
disciplinary investigation, the employer searched the employee’s computer to learn that he had
loaded the computer with software for work unrelated to his official duties. In concluding that
the employee had a reasonable expectation of privacy with regard to the content of his office
computer, the circuit panel noted that that the employee occupied a private office and maintained
exclusive use of the office computer, desk and filing cabinet. 266 F.3d at 74. Although the
employer’s technical support personnel and other staff had infrequently accessed the content of
his office computer for maintenance purposes or to retrieve a particular document, such access
was not sufficient to make the employee’s expectation of privacy unreasonable. Id. See also,
United States v. Slanina, 283 F.3d 670 (5th Cir. 2002)(city fire marshal with locked office and
personal password on his computer had a reasonable expectation of privacy regarding the
computer although network administrator had limited access to the computer and co-workers had
a master key permitting access to the office). Cf, Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001),
reh’g and reh’g en banc denied, 289 F.3d 829 (4th Cir. 2002)(consent to search one’s computer
files can not be obtained from someone else unless they share authority to access your files,
including if necessary the required passwords, and such consent must be voluntary).
A reasonable expectation of privacy can be created when a public employer notifies the
employees that they can maintain both private and public files on their work computers and that
the personal information in their private files will not be accessed by others. Haynes v.Office of
the Attorney General, 298 F. Supp.2d 1154 (D. Kan. 2003). Cf, In Re Bd of County Comm’rs,
2003 Colo. App. LEXIS 1151, 20 BNA IER Cases 1399, as mod., 2003 Colo. App. LEXIS 1651
(Colo. Ct. App. 2003)(state appellate court ruled that certain private e-mail between employees
should not be released under state freedom of information law). Another court rejected a
municipal employee’s privacy claim premised on the public dissemination of her e-mails because
the employer had an explicit monitoring policy, concluding that the issue will turn on the
specifics related to the communications and the configuration of the e-mail system. Kelleher v.
City of Reading, 2002 U.S. Dist. LEXIS 9408 (E.D. Pa. 2002). Also see, United States v. Simons,
206 F.3d 392 (4th Cir. 2000)(evidence of downloaded child pornography, retrieved by public
employer from the employee’s workplace computer, was found to be admissible as evidence in a
criminal prosecution because employee did not have a reasonable expectation of privacy based
on his acceptance of employer’s internet policy stating that the computer was to be used for
government business only and that employee computer use would be monitored).
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2.
Public Employee Use of Internet Under First Amendment
In Urofsky v. Gilmore, 216 F.3d 401; 16 BNA IER Cases 737 (4th Cir. 2000), in a First
Amendment challenge commenced by college professors, the Fourth Circuit upheld a state law
that prohibited the use of state-owned computer equipment to access sexually explicit material.
In dismissing the action, commenced by University of Virginia professors, the Court concluded
that the statute did not violate the First Amendment because it infringed only on the manner in
which they perform their state duties.
The First Amendment has been found not to protect a public employee’s use of a
work e-mail signature deemed vulgar by her public employer. In addition, the university’s email and computer system was not deemed a limited public forum for First Amendment
purposes. Pichelmann v. Madsen, 31 Fed. Appx. 322, 2002 U.S. App. LEXIS 4818 (7th Cir.
2002).
3.
Federal Regulation of Eavesdropping, Wiretaps and Electronic Monitoring
There are both federal and state wiretap laws limiting employer monitoring of employee
telephone conversations, voice messages as well as e-mail and internet use. With the increased
use of e-mail and the internet in the contemporary workplace, frequent questions arise regarding
employers’ power to control and monitor computer use and the scope of employees’ reasonable
expectation of privacy.
Federal statutory regulation of eavesdropping and the interception of conversations were
first enacted in 1969. In 1986, the federal statute was substantially amended to cover electronic
communications and again in 1994 to include cordless telephone communications. The
Electronic Communications Privacy Act of 1986 (hereinafter, “ECPA”), 18 U.S.C. §2701, et seq.
and the Wiretap Act, 18 U.S.C. §2510, et seq. make it unlawful for an individual to intentionally
intercept “any wire, oral, or electronic communications.” 18 U.S.C. §2511(1)(a). In 2001, ECPA
and the Wiretap Act were further amended following the September 11, 2001 terrorist attacks by
the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (HR 3162)(October 26, 2001)
(codified at various subsections of 18 U.S.C. §2510). The ECPA covers both private and public
sector employees.
The ECPA has two chapters, one governing “interception” of communications, 18 U.S.C.
§2510, et seq., and one governing access to electronically stored communications, 18 U.S.C.
§2701 et seq. It defines “intercept” to mean “the aural or other acquisition of the contents of any
wire, electronic or oral communication through the use of any electronic, mechanical or other
device.” 18 U.S.C. §2510(4). The ECPA provides that wire communications includes both
telephone conversations and voice mail messages. 18 U.S.C. §2510(1). As of October 1, 2001,
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the USA PATRIOT Act modified this definition by striking the provision that “such term
includes any electronic storage of such communications.” Oral communications include
conversations when the person exhibits an expectation that the communication will not be
intercepted under circumstances justifying such expectations. 18 U.S.C. §2510(2). Although not
expressly stated in the ECPA, its legislative history reveals that electronic communications
includes e-mail messages. See 18 U.S.C. §2510(12); S. Rep. No. 541, 99th Cong., 2d Sess. 14
(1986).
The statute provides for both criminal penalties for violations and a private right of action
for damages. 18 U.S.C. §2511(c), 2511(d). A person whose communications have been
unlawfully intercepted may sue for injunctive relief, the greater of actual damages (including any
profits the violator may have made) or statutory damages of either $10,000 or $100 for each day
of the violation, punitive damages, and attorney fees and costs. Punitive damages are not
recoverable if the violation involves only the accessing of electronically stored electronic or wire
communications. The ECPA imposes a blanket exclusionary rule barring the introduction into
evidence of intercepted wire communications, but oral communications are similarly protected
only if the existing circumstances give rise to a justified expectation of privacy. 18 U.S.C. §2515.
ECPA Has Significant Exceptions That Affect Employees’ Rights
The ECPA has rarely been found to be of value in protecting employees’ privacy in their
communication because of the significant exceptions it contains. Title I of the ECPA, which
governs unlawful interceptions, provides a “consent” exception, a “business use” exception, and
a “law enforcement” exception. Similarly, Title II of the ECPA, which governs unlawful access
to stored communications, provides a “consent” exception and a “provider” exception.
Consent, either express or implied, will secure an exception from liability under the
ECPA for the employer. See, Williams v. Poulos, 11 F.3d 271 (1st Cir. 1993); Griggs-Ryan v.
Smith, 980 F.2d 112 (1st Cir. 1990); Deal v. Spears, 980 F.2d 1153; 8 BNA IER Cases 105 (8th
Cir. 1992); Watkins v. L. M. Berry & Co., 704 F.2d 577 (11th Cir. 1983); George v. Carusone,
849 F. Supp. 159 (D. Conn. 1994).
Such conversations may not be intercepted nor may the contents of an unlawfully
intercepted communication be used or disclosed. However, if the contents of a covered
communication are obtained in accordance with ECPA, those intercepted or retrieved
communications are admissible in court proceedings. 18 U.S.C. §2517(3). The service provider
exception, found at 18 U.S.C. §2511(2)(a)(1), is only available to an employer if it, rather than
an outside company, provides the communications service. However, the statute’s definition of
“electronic, mechanical, or other device” excludes telephone equipment furnished by the
provider of the communication service (e.g., the phone company) or by the user for connection to
the facilities of the service and used in the ordinary course of business. There are numerous
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judicial opinions that address this exclusion, which is frequently referred to as the “business
phone extension” exclusion, and these confirm that that the ECPA prohibits an employer’s
interception of its employees’ personal conversations.
Various circuit panels have held that an employer violates the ECPA when it listens in on
personal calls or uses non-standard equipment. In Sanders v. Robert Bosch Corp., 38 F.3d 736;
10 BNA IER Cases 1 (4th Cir. 1994), the Fourth Circuit held that an employer violated the
ECPA by installing equipment on certain security lines to record all phone calls, allegedly to
address bomb threats, which the court deemed a “drastic measure” without business justification.
In Deal v. Spears, 980 F.2d 1153; 8 BNA IER Cases 105 (8th Cir. 1992), the Eighth Circuit
found that an employer violated the statute by tape recording and listening to all calls in response
to recent thefts by knowingly listening to an employee’s personal call. An Eleventh Circuit
panel reversed summary judgment in favor of an employer when a supervisor continued to listen
to an employee’s personal phone conversation after the employer had informed its’ employees
that their personal calls would not be monitored except to determine whether the call was
personal or business. Watkins v. L. M. Berry & Co., 704 F.2d 577 (11th Cir. 1983). In Williams v.
Poulos, 11 F.3d 271 (1st Cir. 1993), the court held that an employer violated ECPA where it
intercepted calls using a customized system of alligator clips and a microphone that lead to a
hidden tape recorder, a device that could not be considered telephone equipment.
However, the Fifth and Tenth circuits have found no statutory violation in other cases. In
Briggs v. American Air Filter Co., Inc., 630 F.2d 414 (5th Cir. 1980), the court found that the
employer did not violate the statute by surreptitiously monitoring and recording an employee’s
calls because it had particularized suspicion that the employee was disclosing confidential
business information to a competitor and the surveillance was limited to business-related
communications. The Tenth Circuit in James v. Newspaper Agency Corp., 591 F.2d 579 (10th
Cir. 1979), upheld summary judgment in favor of an employer where Bell had installed the
monitoring equipment and the employer informed its employees in writing that phone calls
would be monitored, both for quality control purposes and for employee’s own protection from
abusive calls, and the court noted that there was no surreptitious monitoring. Another Tenth
Circuit panel found that the statutory exclusion applied where an employee failed to use a nonmonitored phone line the employer provided for personal calls, and the employee had received a
warning regarding excessive personal use of monitored lines. Simmons v. Southwestern Bell Tel.
Co., 611 F.2d 342 (10th Cir. 1979). Earlier, the Tenth Circuit had ruled that, as a matter of law,
use of a device to record a telephone conversation without authorization or consent is “not used
in the ordinary course of business” and cannot qualify for the exclusion. United States v. Harpel,
493 F.2d 346 (10th Cir. 1974).
ECPA and Employee Use of Workplace Computers
Based on the statutory exclusions contained in the ECPA, employers have rarely been
found liable for violating employees’ privacy interests under the law. In Fraser v. Nationwide
Mutual Insurance Co., 352 F.3d 107; 20 BNA IER Cases 1207 (3d Cir. 2003), the Third Circuit
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affirmed the grant of summary judgment regarding ECPA Title I claims brought by an
independent insurance agent against an insurance company when the company conducted an
investigatory search of e-mails sent and received by the agent that were stored in the company’s
main computer file server. The asserted purpose of the search was to determine whether the
plaintiff had been revealing company secrets to competitors. The Third Circuit reasoned that the
company’s search of stored electronic messages did not constitute an “intercept” under the
ECPA because it was not done contemporaneously with the electronic transmission. In addition,
the Third Circuit affirmed the dismissal of the ECPA Title II claims holding that the company’s
search was covered by the exception contained in 18 U.S.C. §2701(c )(1) permitting a “person or
entity providing a wire or electronic communications service” to intercept communications.
Similarly, the Ninth Circuit held that the ECPA was inapplicable to a claim challenging
an employer’s viewing of an employee’s secure website where he had posted information critical
of the employer and his union and the employer had accessed the site by using two fellow
employees’ names and passwords without permission. Konop v. Hawaiian Airlines, Inc., 302
F.3d 868; 170 L.R.R.M. 2906 (9th Cir. 2002), cert. denied, 537 U.S. 1193 (2003); See also,
United States. v. Steiger, 318 F.3d 1039 (11th Cir. 2003), cert. denied, 538 U.S. 1051 (2003)
(holding that a private individual’s hacking into another’s computer to download pornographic
images and to identify information stored on the hard-drive did not violate the ECPA because it
was unlawful contemporaneous intercept of an electronic transmission).3
ECPA claims by public employees have also been rejected. In Bohach v. City of Reno,
932 F. Supp. 1232, 1236; 11 BNA IER Cases 1707 (D. Nev. 1996), the District Court held that a
police department could, without violating ECPA Title II, retrieve pager text messages stored on
the police department’s computer system because the department “is the provider of the service
and service providers may do as they wish when it comes to accessing communications in
electronic storage.” The court emphasized that inherent in all computer systems is e-mail storage
capabilities resulting in employees having no reasonable expectation of privacy when sending or
receiving an e-mail using the employer’s computer. This blunt judicial declaration is troubling
since the court acknowledged that many employees do not know or understand that an e-mail
system stores all transmitted messages. A similar result was obtained in Adams v. City of Battle
Creek, 1999 U.S. Dist. LEXIS 6151, 15 IER Cases 254 (W. D. Mich. 1999), where a police
officer sued his employer under the ECPA for surreptitiously monitoring his messages received
on his alphanumeric pager. The court sustained the employer’s statutory defense concluding that
it had a legitimate business purpose for its brief monitoring of telephone numbers received based
on its concern about drug trafficking within the department and its particularized suspicion
regarding the plaintiff.
4.
Common Law Claims of a Right to Privacy in E-Mails Have Generally Been
Rejected
3 In Sparshott v. Feld Entertainment, 311 F.3d 425, 432 (D.C. Cir. 2002), the D.C. Circuit held that a co-worker’s
use of a caller ID units on another employee’s telephone did not violate the prohibition against the use of trap and
trace devices under 18 U.S.C.§3121.
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A few courts have found that individuals, including employees, have a reasonable
expectation of privacy in their e-mails, similar to their historic right regarding letters. In United
States v. Maxwell, 45 M. J. 406, 1996 CAAF LEXIS 116 (C.A.A.F. 1996), the court found that
the individual had a reasonable expectation of privacy in his own e-mail but that the expectation
does not extend to communications in a chat room. Similarly, a Massachusetts trial court denied
an employer summary judgment regarding the claims by discharged employees for violations of
their statutory right to privacy and wrongful termination concluding that whether an employee
had a reasonable expectation of privacy in workplace e-mail and whether the employer’s reading
of employee e-mails constituted an unreasonable and substantial interference with privacy were
factual issues to be resolved at trial. Restuccia v. Burk Technology, 1996 Mass. Super. LEXIS
367 (Mass. Super. Ct.1996). See also, Tamm v. Hartford Insurance Co, 16 Mass. L. Rptr. 535,
2003 Mass. Super. LEXIS 214 (Mass. Super. Ct. 2003)(court held insurer’s duty to defend arose
where complaint alleged employee disclosed private e-mails to outsiders in violation of fellow
employee’s privacy); United States v. Charbonneau, 979 F. Supp. 1177 (S.D. Ohio 1997)
(defendant had reasonable expectation of privacy in his personal e-mail sent via AOL but did not
with regard to communications in a chat room).
However, the Seventh Circuit has held that when an employer asserts a right to inspect
employer-owned laptop computers used by an employee, the employee does not have any
reasonable expectation of privacy. Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002).
Further, in Smyth v. Pillsbury Co., 914 F. Supp. 97; 11 BNA IER Cases 585 (E. D. Pa.
1996), a federal trial court found that an employer was not bound by its expressed promises to
employees that it would not intercept or use any e-mails for disciplinary purposes concluding
that the employer’s interest in disciplining employees for inappropriate e-mail comments
outweighed the employee’s privacy interests. Similarly, in Garrity v. John Hancock Mut. Life
Ins. Co., 2002 U.S. Dist. LEXIS 8343, 18 IER Cases 981 (D. Mass. 2002), another federal court,
relying on Smyth, supra, concluded that employees lacked a reasonable expectation of privacy in
their e-mails, where it was acknowledged that that the e-mail could be forwarded to unintended
recipients. Alternatively, the court ruled that even if employees had a reasonable expectation of
privacy in their e-mail, the employer’s interest in protecting its employees from harassment in
the workplace would outweigh the employee’s privacy interests once a complaint was received
and the employer had to investigate.
5.
Other Statutory Bases for Regulation of Employee Computer Use
a. Potential Liability for Employers Based on Employee Computer Use
In Ocasio v. Lehigh Valley Family Health Center, 92 Fed. Appx. 876, 2004 U.S. App.
LEXIS 4711 (3d Cir. 2004), the Third Circuit found that an offensive e-mail, along with other
alleged anti-Hispanic comments by co-workers, was insufficient to establish a hostile
environment based on national origin. See also, Bowie v. Advanced Ceramics Corp., 72 Fed.
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Appx. 258 (6th Cir. 2003)(single racially offensive e-mail insufficient to create hostile work
environment. See generally, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75
(1998); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). However, in Coniglio v. City of
Berwyn, 2000 U.S. Dist. LEXIS 9841 (N.D. Ill. 2000), a municipal employer was denied
summary judgment in a sexual harassment hostile environment case where it was alleged that
the city comptroller had a practice of viewing pornography on the internet in full view of
plaintiff and her co-workers. Cf., Blakey v. Continental Airlines, 751 A.2d 538, 551; 16 BNA
IER Cases 809 (N.J. 2000)(New Jersey’s Supreme Court reversed trial court dismissal of
Title VII harassment claims of female pilot where the harassment initially involved
pornographic pictures left in her seat but during litigation came to include derogatory
postings on the employer’s online bulletin board, and noted that there was no authority
suggesting that employers had a duty to monitor employees’ e-mail and that “grave privacy
concerns are implicated” if they chose to do so, but that employers “may not disregard the
posting of offensive messages on [employer] e-mail systems if they are made aware of those
messages.”).
b. Possible Criminal Liability Under Child Pornography Prevention Act
Pursuant to the Child Pornography Prevention Act, 18 U.S.C. §2252A, the knowing transport,
distribution and receipt of child pornography through interstate commerce via the use of a
computer constitutes a federal criminal offense. In addition, 18 U.S.C. §2252A(a)(5)B prohibits
a person to knowingly possess an image of child pornography on a computer disk that has been
received or created through interstate commerce. “Possession of a single child pornographic
image, with the knowledge that it depicts an actual minor, is sufficient to establish a criminal
violation.” United States v. Marchand, 308 F. Supp.2d 498, 503 (D.N.J. 2004). However, in
order to be able to prove a violation, it must be established that the person had actual knowledge
or willful blindness that the image stored was created with the use of an actual child rather than
being a purely virtual computer image. United States v. Marchand, supra at 506; United States v.
X-Citement Video, 513 U.S. 64 (1994); Free Speech Coalition v. Ashcroft, 535 U.S. 234 (2001).
In theory, under the Child Pornography Prevention Act, an employer could be prosecuted if it
failed to take any action after it had actual knowledge that child pornographic images were being
stored on its computer system. However, Congress codified an affirmative defense in the statute
that encourages employers to promptly report to law enforcement officials the discovery of child
pornographic images stored on workplace computers and discs. See, United States v. Lasaga,
328 F.3d 61 (2d Cir. 2003); United States v. Marchand, supra. (employer’s communication to
law enforcement regarding downloading of child pornography on it’s computers led to successful
criminal prosecution of employees). Pursuant to 18 U.S.C. §2252A(d)(2), criminal responsibility
can be avoided if a person promptly and in good faith reports the discovery to a law enforcement
agency, prohibits access to the pornographic image and takes reasonable steps to destroy the
image.
6.
NLRA Legal Framework Regarding Restrictions On Computer Use
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Prior to the advent of the personal computer, federal private sector labor law recognized
that worker communication on the job is essential to the exercise of the fundamental statutory
rights of workers under the NLRA to self organize and bargain collectively. See, Beth Israel
Hospital v. NLRB, 437 U.S. 483, 491; 98 L.R.R.M. 2727 (1978). Nevertheless, the right of
workers to communicate at the workplace is balanced against the property right of the employer
to maintain productivity and discipline. See, Republic Aviation Corp. v. NLRB, 324 U.S. 793; 16
L.R.R.M. 620 (1945)(holding employer’s blanket ban on solicitation by employees on non-work
time unlawful).
The balance between worker associational rights and employer property rights has led the
Court to hold that an employer is not ordinarily required to permit non-employees access to its
facilities for union activities “when other means are readily available.” NLRB v. Babcock &
Wilcox Co., 351 U.S. 105, 114; 38 L.R.R.M. 2001 (1956). In Lechmere, Inc. v. NLRB, 502 U.S.
527; 139 L.R.R.M. 2225 (1992), the Court emphasized that in most situations, an employer’s
property rights will be deemed to outweigh the associational rights of workers to meet with nonemployee union activists on the employer’s property except when the union can establish that the
workplace location and living quarters place the worker beyond the reach of reasonable union
efforts to communicate with the workforce.
However, the employer’s ability to prohibit non-employee union activists from accessing
its property may be lost if the employer permits other non-employee organizations access to
solicit. Lucile Salter Packard Children’s Hosp. v. NLRB, 97 F.3d 583; 153 L.R.R.M. 2513 (D.C.
Cir. 1996). Similarly, although the NLRB has upheld employer blanket rules against employees
posting notices on company bulletin boards, employers cannot lawfully impose a rule that bans
only union-related notices. Honeywell, Inc., 262 NLRB 1402, 110 L.R.R.M. 1467 (1982), enf’d,
722 F. 2d 405 (8th Cir. 1983); Timken Co., 331 NLRB 744, 171 L.R.R.M. 1426 (2000).
The NLRB’s disparate treatment analysis has been similarly applied to work-place
telephones, mailboxes, and personally assigned lockers. Thus, the NLRB has found NLRA
violations where an employer removed union newsletters from employee mailboxes. Cincinnati
Enquirer, 279 NLRB 1023, 122 L.R.R.M. 1158 (1986). Similarly, when an employer removed
union literature placed in employee lockers during non-work time the Board found the had been
violated. Sprint/United Management Co., 326 NLRB 397, 159 L.R.R.M. 1277 (1998).
Nevertheless, in Mid-Mountain Foods, Inc., 332 NLRB 229 , 168 L.R.R.M. 1450 (2000),
the NLRB concluded that NLRA was not violated when employer showed an anti-union video at
worksite but refused to permit union organizing committee to use the break room television to
show a pro-union video.
7.
NLRB and Other Labor Decisions Regarding Employee E-mail and Internet Use
a. The NLRB Addresses E-Mail and the Internet in the Workplace
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In Timekeeping Systems, Inc., 323 NLRB 244, 154 L.R.R.M. 1233 (1997), the NLRB
held that a discharged employee engaged in protected concerted activity when he sent e-mail
messages to other employees regarding a proposed change in vacation policy which had been
circulated by the employer via e-mail. The employer’s cover e-mail message encouraged
employees to “give me your comments (send me e-mail or stop in to talk to me) by Tuesday,
12/5.” After one employee responded with an e-mail to all the employees praising the proposed
change, the discharged employee responded with a lengthy message to his fellow employees
expressing criticism of the changes in the terms and conditions of employment.
In contrast, the NLRB found a discharged employee had not engaged in protected
concerted activity where his e-mail critical of management was for his own purposes and was
inappropriately disruptive of the hospital’s mission of patient care where he chose to use a
procedure that ceased all other computer-facilitated communications at a peak usage time in
order to have his message receive the immediate attention of all hospital personnel who used the
workplace computers. Washington Adventist Hospital, 291 NLRB 95, 131 L.R.R.M. 1276
(1998).
The Board found the employer violated the NLRA where it maintained a discriminatory
access policy with respect to its computer system. E.I. DuPont de Nemours & Company and
Chemical Workers Assn., 311 NLRB 893; 143 L.R.R.M. 1121 (1993); Lockheed Martin Skunk
Works, 331 NLRB No. 104; 164 L.R.R.M. 1329 (2000). An NLRB administrative law judge
has found that an employer violated the Act where it sought to preclude a union activist’s use of
pro-union screen-saver. St. Joseph’s Hospital, 337 NLRB 94; 169 L.R.R.M. 1049 (2001). Also
see, The Prudential Insurance Company of America, 2002 NLRB LEXIS 551 (ALJ found a
violation based on creation and enforcement of overbroad no-solicitation policy employer
applied to inter/intra-office e-mail system with regard to the union).
In Pratt & Whitney, 1998 NLRB GCM LEXIS 51 (Feb. 23, 1998), an NLRB General
Counsel advisory memorandum supported the issuance of a complaint based on employer’s
maintenance of an overbroad non-solicitation rule in the workplace where employees used
employer’s electronic network to distribute other forms of non-business related communications.
b. Public Sector State Law Decisions Regarding Employee E-mail Use
In Benson v. Cuevas, 293 A.D.2d 927, 741 N.Y.S.2d 310 (3d Dept. 2002), mot. for lv
den., 98 N.Y.2d 611, 749 N.Y.S.2d 3, 778 N.E.2d 554 (2002), a New York appellate court
upheld an administrative determination finding that a public employer had not engaged in antiunion discrimination when it terminated a union activist’s access to the employer’s e-mail
system after the employee refused to comply with directives that he discontinue utilizing the email system for mass distribution of union-related materials in violation of the employer’s
policy. See also, Oakland County, 15 MPER ¶33,018 (2001)(charging party failed to
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demonstrate that public employer discriminatorily denied him the right to use the e-mail system
based on the union-related content of the e-mail).
In contrast, in County of Onondaga, 33 NYPERB ¶4599 (2000), a state administrative
law judge ruled that a public employer had unlawfully transferred a union president based on an
e-mail to unit members about a pending grievance in response to an earlier e-mail from the
employer. See also, Florida Board of Education, 29 FPER ¶89 (2003)(approving a settlement
agreement that prohibited the employer from imposing an overly broad no-solicitation rule
regarding e-mail use and required the employer to permit employees to use the e-mail system to
send union messages during non-work time).
An administrative law judge applied a disparate treatment analysis in resolving a charge
under the Federal Labor Relations Act based on an agency’s reprimand of two union officials for
using its e-mail system in conducting union business. Small Business Administration and AFGE
Local 3588, 99 FLRR 1-4002 (1998).
Videotape and Photographic Employer Surveillance
Many public sector and private sector employers utilize either covert or overt videotaping
and photography ostensibly as a security device to protect the employer’s property, or as a means
to monitor employee job performance, investigate alleged employee misconduct or to challenge
an employee’s application for disability benefits.
1.
Tort Claims Based On Violations of the Right to Privacy
Secret videotaping or photographing can form the basis for a tort action based on a state
common law theory or an alleged violation of a state constitutional or statutory provision. See,
Hill v. NCAA, 7 Cal. 4th 1, 865 P.2d 633, 26 Cal. Rptr.2d 834; 9 BNA IER Cases 716
(1994)(state constitutional provision protecting privacy creates enforceable rights against both
government agencies and private entities including business interests).
In Illinois, summary judgment was denied to an employer in a tort action, brought by
employees based on the intentional tort of intrusion upon seclusion, challenging the surreptitious
videotaping of employees while they were receiving medical treatment in the workplace. Acuff v.
IBP, Inc., 77 F. Supp.2d 914; 15 BNA IER Cases 1737 (C.D. Ill. 1999). However, the employer
was granted summary judgment with respect to those employees who were unable to establish
the elements of the tort claim: a) unauthorized intrusion or prying into plaintiff’s seclusion; b)
the intrusion was offensive or objectionable to a reasonable person; c) the matter upon which the
intrusion occurs was private; and d) the intrusion caused anguish and suffering. Cf. Barksdale v.
IBM, 620 F. Supp. 1380; 1 BNA IER Cases 524 (W.D. NC 1985), aff’d w/o opinion (4th Cir.
1986)(summary judgment granted to employer in state tort action premised on the employer
observing and recording errors employees made on tasks they were asked to perform for quality
control purposes).
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In Doe v. BPS Guard Services, Inc., 945 F.2d 1422 (8th Cir. 1991), the Eighth Circuit
affirmed a jury verdict in a state tort action by models who were secretly videotaped in a
makeshift dressing room). See also, Liberti v. Walt Disney World, 912 F. Supp. 1494 (M.D. Fla.
1995)(denying summary judgment in a common law right of privacy action based on employer
secretly videotaping individuals in a dressing room as part of its investigation of another of its
employees videotaping the same dressing room); Cramer v. Consolidated Freightways Corp.,
255 F.3d 683; 167 L.R.R.M. 2353 (9th Cir. 2001), cert. denied, 534 U.S. 1078 (2002)(Circuit
panel reversed dismissal of unionized employees’ state law privacy claims based on employer’s
installation of hidden video cameras in their terminals’ restrooms, concluding that the state law
privacy claim was not preempted by federal law); Sabrina W. v. Willman, 4 Neb. App. 149, 540
N.W.2d 364 (1995)(surreptitious photographing and publication of a private individual in
tanning salon actionable) . Cf., Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176; 144
L.R.R.M. 2153 (7th Cir. 1993)(circuit panel affirmed summary judgment in favor of an employer
in a state tort claim by a non-employee based on the videotaping by a surveillance camera of
the non-employee in the employee’s locker room).
Similarly, the unauthorized publication of a photograph or videotape of a private
individual is actionable in many states as a violation of the right to privacy. See, Reed v. Real
Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Olan Mills, Inc. v. Dodd, 234 Ark. 495,
353 S.W.2d 22 (1962); Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Korn
v. Rennison, 21 Conn. Supp. 400, 156 A.2d 476 (1959); Jacova v. Southern Radio and Television
Co., 83 So.2d 34, 1955 Fla. LEXIS 4003 (Fla.1955); Pavesich v. New England Life Ins. Co., 122
Ga. 190, 50 S.E.68 (1905).
2. Constitutional Claims for Public Employees Under Fourth Amendment
In Hawaii v. Bonnell, 75 Haw. 124, 856 P.2d 1265; 8 BNA IER Cases 1226 (Haw. 1993),
secret videotapes of employees in a break room were suppressed in a criminal prosecution, on
Fourth Amendment grounds, because the employees were found to have an actual subjective
expectation of privacy that was objectively reasonable. In Pennsylvania, a state appellate court
affirmed a lower court’s suppression of audio tapes made by a supervisor of her conversations
with her subordinate employees, where the tapes she had stored in her desk drawer were actually
taken into custody by a State Trooper acting without a warrant. Pennsylvania v. Jackson, 809
A.2d 411, 414-15, 2002 Pa. Super. 315 (Pa. 2002).
However, the secret warrentless videotaping of a public university’s police office during
an employer disciplinary investigation regarding allegations of gambling by police officers in the
work place, was found not to violate the police officer’s Fourth Amendment right to be free from
unreasonable search and seizures because the police officer lacked a reasonable expectation of
privacy in the police department’s office. In rejecting the constitutional challenge to the
videotaping, the Illinois Court of Appeals emphasized that the office in question was used by all
university police officers to conduct business and was not plaintiff's private office. In addition,
although the building was closed to the public, he had allowed other unauthorized individuals to
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enter the office to gamble. Thornton v. University Civil Service Merit Board, 154 Ill. App. 3d
1016, 507 N.E.2d 1262 (Ct. App. Ill. 1987).
Similarly, in California, the use of warrantless video surveillance in a prison to
investigate apparent theft from the jail’s release office was found not to constitute an unlawful
search and seizure, invasion of privacy, or tortious intrusion of the rights of deputy sheriffs
because they did not have a reasonable expectation of privacy in that office and generally had a
diminished privacy expectation because of nature of their employment. Sacramento County
Deputy Sheriffs’ Association v. County of Sacramento, 51 Cal. App. 4th 1468, 59 Cal. Rptr.2d
834; 12 BNA IER Cases 723 (1996), rev. den, 1997 Cal. LEXIS 1779. See also, Jeffers v. City
of Seattle, 23 Wn. App. 301, 597 P.2d 899 (Ct. App. Wash. 1979)(the test for privacy regarding
the videotaping of a police officer in a Police Chief’s office, aimed at challenging a police
officer’s disability claim rests on whether the officer had a reasonable expectation of privacy
regardless of whether it took place in a public or private place).
3.
Unlawful Employer Surveillance of Protected Union Activity and the Duty to
Negotiate Employer Surveillance
Employers who engage in video or photographic surveillance of protected union activity
may be found to violate the NLRA or similar state labor laws granting employees the right to
organize and participate in union activities.
a.
Private Sector
It is well-settled under the NLRA that employers who photograph or videotape
employees engaged in protected concerted activities may be found to have engaged in unlawful
conduct unless the employer is able to demonstrate that it had a proper non-discriminatory
justification for its conduct. See, Alle-Kiski Medical Center, 339 NLRB No. 44, 174 L.R.R.M.
1127 (2003); Chester County Hospital, 320 NLRB 604, 153 L.R.R.M. 1175 (1995); F.W.
Woolworth Co., 310 NLRB 1197, 143 L.R.R.M. 1187 (1993); Waco, Inc., 273 NLRB 746, 118
L.R.R.M. 1163(1984). Similarly, turning parking-lot video cameras to monitor hand billing,
without justification, constitutes unlawful surveillance under the NLRA. Unbelievable, Inc. d/b/a
Frontier Hotel & Casino, 323 NLRB 815, 155 L.R.R.M. 1150 (1997).
Although the NLRB generally finds conspicuous employer surveillance of employee
union-related activities on or near the employer's premises to be acceptable, employer
videotaping or photographing is presumed to interfere and restrain employees in the exercise of
their Section 7 rights. 29 U.S.C. §158(a)(1); Basic Metal and Salvage Co, Inc., 322 NLRB 462,
154 L.R.R.M. 1183 (1996); National Tel. Directory Corp., 319 NLRB 420, 150 L.R.R.M. 1290
(1995); Grass Valley Grocery Outlet, 338 NLRB No. 128, 173 L.R.R.M. 1541 (2003)(NLRB
upheld union’s objections and directed a third election where an employer’s agent disrupted a
discussion between two union representatives and four employees in a shopping center parking
lot). In addition, an employer can be found in violation of the NLRA by giving employees the
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impression that it is closely monitoring their union activities. Garvey Marine, Inc., 328 NLRB
991, 163 L.R.R.M. 1253 (1999); Ichikoh Mfg., 312 NLRB 1022, 144 L.R.R.M. 1243 (1993),
enf’d, 41 F.3d 1507 (6th Cir. 1994).
In Colgate-Palmolive Co., 323 NLRB 515, 155 L.R.R.M. 1034 (1997), the NLRB held
that the installation and use of hidden surveillance cameras in the workplace is a mandatory
subject of bargaining and the union had the right to bargain regarding the installation and the
manner that the surveillance cameras will be utilized. In Colgate-Palmotive, supra, the employer
installed the surveillance cameras in response to workplace misconduct and for the purpose of
disciplining employees. In concluding that the employer’s action was a mandatory subject of
bargaining, the Board analogized surveillance cameras to other forms of employer infringement
on the privacy of employees such as physical examinations, drug and alcohol testing and the use
of polygraph testing. At present, it is not known whether the present NLRB plans to overrule the
decision in Colgate-Palmolive. See, IBM Corporation, 2004 NLRB LEXIS 301, 341 NLRB No.
148 (2004)(overturning Board decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB
676, 164 L.R.R.M. 1233 (2000), enfd. in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), cert.
denied, 536 U.S. 904 (2002), which had held that under the Act, an employee in a non-union
setting had the right to be represented by a co-worker during an interrogation).
In addition, as part of its statutory right to negotiate with the employer and administer the
collective bargaining agreement, a union has the right to obtain information from the employer
concerning any existing cameras unilaterally installed by the employer. However, the employer
may demand bargaining with the union over a confidentiality agreement relating to the release of
such information. National Steel Corporation v. NLRB, 324 F.3d 928; 172 L.R.R.M. 2154 (7th
Cir. 2003).
b.
Public Sector
Like their private sector counterparts, public sector employees, in states that
permit public sector union organizing, are protected under state laws from employer
videotape and photographic surveillance of protected union activities. See, Regents
of the University of California, 26 PERC ¶33,050 (2002)(videotape or photographic
surveillance of public sector union activities, such as contact between public
employees and their union representative, was found to violate California’s Higher
Education Employer-Employee Relations Act because it creates an inherent fear of
retaliation by the employer).
In St. Clair County Probate Court (Juvenile Center), 15 MPER ¶33,074
(2002), the Michigan Employment Relations Commission held that a public
employer engaged in an unfair labor practice by refusing to permit the union to
review a silent surveillance videotape of the facility’s lobby that showed an argument
between a union activist and supervisor that formed the basis for disciplinary action
that was being challenged through the contractual grievance procedure.
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In contrast to the private sector, at least in New York, the installation and use
of surveillance cameras by public employers is not a mandatory subject of
bargaining. See, City of Syracuse, 14 NYPERB ¶4645 (1981)(public employer’s
unilateral decision to install videotape surveillance cameras in the police garage for
security purposes and to protect valuable equipment was not a mandatory subject of
collective bargaining under New York’s Public Employees’ Fair Employment Act);
Elmont Union Free School District, 28 NYPER ¶4693 (1995)(public employer had
the unilateral right to secretly videotape a school bus driver while on her bus runs in
response to parental complaints about the bus driver’s performance. Such video
surveillance was not a mandatory subject of bargaining because it was investigatory
and preliminary to possible disciplinary action against the driver).
Prohibitions Against Genetic Discrimination and Genetic Testing
Many states and the federal government prohibit discrimination based on genetic testing
and genetic testing results.
According to the National Conference of State Legislatures, 32 states have enacted laws
that prohibit discrimination based the results of genetic testing. In addition, most of these states
restrict employer access to genetic information of employees. The substantive provisions of these
state laws vary with regard to the specific type of employer conduct prohibited. See, Ariz. Rev.
Stat. § 41-1463, Ark. Code Ann. §§ 11-5-401 – 405, Cal. Govt. Code §§ 12926, 12940, Conn.
Gen. Stat. §§ 46a – 60, Del. Code Ann. tit. 19 §§ 710 – 711, 410 Ill. Comp. Stat. 513/25 – 45,
Kan. Stat. Ann. §§ 44 – 1002, 1009, La. Rev. Stat. Ann. §§ 22-213.7, 23:368, Md. Ann. Code
art. 49B § 16, Mass. Ann. Laws ch. 151B §§ 1, 4, Mich. Comp. Laws §§ 37.1201 - .1202, Minn.
Stat. § 181.974, Mo. Rev. Stat. §§ 375.1300, 375.1306, Nev. Rev. Stat. § 613.345, N.H. Rev.
Stat. Ann. § 141-H:3, N.J. Stat. Ann. §§ 10:5-5, 10:5-12, N.Y. Exec. Law §§ 292, 296, N.C. Gen.
Stat. § 95-28.1A, Okla. Stat. tit. 36 § 3614.2, Or. Rev. Stat. § 659A.303, R.I. Gen. Laws § 286.7-1, S.D. Codified Laws § 60-2-20, Tex. Lab. Code Ann. § 21.402, Utah Code Ann. § 26-45103, Vt. Stat. Ann. tit. 18 § 9333, Va. Code Ann. § 40.1-28.7:1, 2004 Wash. Laws Ch. 12, Wis.
Stat. §§ 111.32, 111.372.
In 1996, New York State amended its primary anti-discrimination statute to prohibit
employment discrimination based on an individual’s genetic predisposition or carrier status. N.Y.
Exec. Law §296(1)(a). In addition, N.Y. Exec. Law §296(19) was added to prohibit employers
from soliciting, requiring or administering a genetic test as a condition of employment unless the
test is shown to be directly related to the occupational environment or when an employee
requests a genetic test and provides written and informed consent.
Unlike polygraph examinations, genetic testing has been found to be scientifically
reliable by state legislatures and courts. As a practical matter, DNA evidence is considered
the most reliable form of identification evidence and stronger than fingerprints or
photographs. See, Green v. Berge, 354 F.3d 675 (7th Cir. 2004). The recent arrest of Portland
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attorney Brandon Mayfield based on a flawed FBI fingerprint analysis confirms the
weaknesses inherent in fingerprint identification. See, Heath, Bungled fingerprints expose
problems at FBI, The Seattle Times, June 7, 2004. Similarly, genetic testing results are not
infallible. Human error and laboratory misconduct can result in false genetic results. See,
Anderson, Ex-FBI Laboratory Worker Guilty, Falsified DNA, The Guardian, 5/19/2004
(reporting on the conviction of an FBI laboratory biologist who admitted to intentionally
creating over 100 false DNA reports and failing to follow quality control standards to ensure
the accuracy of her DNA analyses). See also, State v. Morel, 676 A.2d 1347, 1356; 1996 R.I.
LEXIS 167 (1996)(in dicta, the court emphasized its concerns regarding negligent handling of
samples by both police and laboratory staff).
The laws prohibiting and restricting genetic testing stem from societal concerns about
the intrusive nature of genetic testing on personal privacy. As the Ninth Circuit has
recognized “(o)ne can think of few subject areas more personal and more likely to implicate
privacy interests than that of one’s health or genetic make-up.” Norman-Bloodsaw v.
Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269; 13 BNA IER Cases 1121 (9th Cir.
1998); State v. Morel, supra. (acknowledging legitimate privacy concerns regarding the
dangers connected with unauthorized access to genetic information and possible genetic
discrimination by employers and insurance companies).
Many state legislatures have concluded that the fact that an individual may have a
genetic predisposition to a particular disease should not form a legitimate basis for
employment decisions. See also, International Union v. Johnson Controls, 499 U.S. 187
(1991)(holding that a chemical company engaged in unlawful gender discrimination by its
facially discriminatory policy against women able to bear children premised on the
employer’s fear of the health consequences of workplace lead exposure).
One of the primary fears underlying state remedial legislation is that employers, in
their drive to maximize productivity and profit, will utilize genetic information to make
employment decisions, in providing health care and in creating, modifying and applying
employment policies. For example, the New York State Legislature concluded that remedial
legislation was needed because employers may use genetic testing results as a means of
controlling health insurance costs and due to “the possibility that even otherwise healthy
individuals will be labeled genetically ‘defective’ and will form a growing ‘genetic
underclass’ of society.” N.Y. McKinneys, L. 1996, c. 204.
Although there are few reported court and administrative determinations on geneticbased employment discrimination claims, there is strong support for such regulations. See,
Pagnattaro, Genetic Discrimination and the Workplace: Employee’s Right to Privacy v.
Employer’s Need to Know, 39 Am. Bus. L.J. 139, 154 (2001)(citing information from a 1996
study regarding genetic-based employment discrimination); Andrews, A Conceptual
Framework for Genetic Policy: Comparing the Medical Health, and Fundamental Rights
Model, 79 Wash. U.L.Q. 221, 262, ftnte. 325 (2001)(citing a 1999 study by the American
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Management Association and a 1989 study by the U.S. Office of Technology Assessment
regarding the frequency of genetic screening or monitoring by employers).
On February 8, 2000, President Clinton signed Executive Order 13145, which prohibits
discrimination on the basis of protected genetic information in the Executive Branch of the
federal government. 65 FR 6877 (2000). Under the Executive Order, the United States Equal
Employment Opportunity Commission (EEOC) was delegated the responsibility for coordinating
the federal policy prohibiting genetic based discrimination. See, EEOC Policy Guidance on
Executive Order 13145 (2000). The Executive Order defines protected genetic information to
include: information regarding an employee’s genetic test; the results of genetic testing of the
employee’s family members; and genetic information regarding family members’ susceptibility
to disease. See, §1-102(e)(1)(A). It prohibits federal executive departments and agencies from
taking adverse personnel actions based on protected genetic information or information
regarding genetic services. It also prohibits requesting or requiring genetic information. It also
prohibits these departments and agencies from maintaining protected genetic information in
general personnel files rather than in confidential medical files. Finally it prohibits the
disclosure of genetic information regarding employees except in certain limited circumstances.
§§1-202(a)-(e).
Since 1995, the EEOC has interpreted the ADA to prohibit discrimination based on an
individual’s genetic profile on the grounds that such an individual is a person regarded as
disabled under the ADA, 42 U.S.C. §12102(2). EEOC Compliance Manual, §902.8(a). On
April 18, 2001, the EEOC announced the settlement of its first legal action under the ADA
challenging an employer’s nationwide policy of testing for genetic markers in blood samples
taken from employees who claimed injuries stemming from carpal tunnel syndrome. EEOC v.
Burlington Northern Santa Fe Railroad, No. CO1-4013 MWB (N.D. Iowa 2001).
The Supreme Court has not determined whether an individual carrying a genetic
marker for a debilitating disease has a disability as that term is defined under the Americans
with Disabilities Act (ADA), 42 U.S.C. §§12101, et seq.
In Bragdon v. Abbott, 524 U.S. 624 (1998), the Court concluded that asymptomatic
HIV constituted a disability because it substantially impaired the major life activity of
reproduction. 524 U.S. at 638. In his dissent in Bragdon, supra, Chief Justice Rehnquist
questioned whether plaintiff’s reasoning, adopted by the majority, would lead to the ADA
being extended to an individual with a genetic predisposition to a life-threatening disease. 524
U.S. at 661. See also, Priore v. New York Yankees, 307 A.D.2d 67, 761 N.Y.S.2d 608 (1st
Dept. 2003), rearg. den., 2003 N.Y.App. Div. Lexis 9724 (1st Dept. 2003); app. den., 2003
N.Y. Lexis 4134 (2003)(considering HIV-positive status under state law prohibiting
discrimination based on genetic predisposition or carrier status).
Supreme Court precedent since Bragdon, supra, narrowly interpreting the ADA
definition of disability, renders it unlikely that the Rehnquist Court will extend the Bragdon
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holding to individuals carrying asymptomatic genetic markers. See, Toyota Motor Mfg. v.
Williams, 534 U.S. 184 (2002) (in order for an impairment to substantially limit the
performance of manual tasks under the ADA, the impairment must prevent or severely
restricted an individual from doing activities that were of central importance to most people's
daily lives and the impact of the impairment must be either permanent or long-term); Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999)(whether an individual has a disability under the
ADA must be made with reference to measures that mitigate the individual's impairment and
order to be “regarded as” disabled it must be shown that the employer mistakenly believed
that the individual’s non-limiting impairment substantially limited one or more life activities).
See also, Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999)(individual with
hypertension was not" regarded as" disabled under the ADA).
In Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260; 13 BNA IER
Cases 1121 (9th Cir.1998), the Ninth Circuit reinstated a lawsuit brought by employees of a
federally funded research laboratory challenging a pre-placement testing practice in which their
blood and urine samples were tested for traits of sickle cell anemia, syphilis and pregnancy. The
sickle cell trait is a genetic condition. 135 F.3d at 1265, ftnte. 3.
Although the circuit panel in Norman-Bloodsaw, supra, affirmed the dismissal of
plaintiffs’ ADA claims, it reinstated plaintiffs’ claims for violations of the federal constitutional
due process right to privacy and their right to privacy guaranteed under Article 1, §1 of the
California state constitution. 135 F.3d at 1275. In addition, the court reinstated plaintiffs’ claims
under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e, et seq., that alleged that AfricanAmericans were singled out for sickle cell trait testing and women were singled out for
pregnancy testing. 135 F.3d at 1271. In affirming the dismissal of the ADA claims, the court
noted that the pre-placement testing was permissible because the ADA does not prohibit postoffer employment entrance examinations that are not concerned solely with the individual’s
ability to perform job-related functions. 135 F.3d at 1273.
On May 1, 2003, Congressmember Louise Slaughter re-introduced legislation, H.R.
1910, which would prohibit employment discrimination on the basis of protected genetic
information. Although a similar bi-partisan bill, the Genetic Information Nondiscrimination Act,
passed in the Senate last year, the House bill remains stalled in committee. See, Genetic
Discrimination Bill Stalls in House, Congress Daily AM April 20, 2004; Heading off Genetic
Bias, Washington Post editorial, April 26, 2004.
Under §202(a)(1) of the House bill, it would be an unlawful employment practice for an
employer to engage in employment discrimination against any individual “because of protected
genetic information with respect to the individual or information about a request for or the
receipt of genetic services by such individual or family member of such individual.” In addition,
it would generally ban employers from requesting, requiring or obtaining protected genetic
information. In certain limited circumstances employers would be permitted to engage in genetic
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monitoring of biological effects of toxins in the workplace and provide health or genetic services
to its employees under §202(a)(3)(A)-(C).
In sharp contrast to the prohibitions against genetic testing and discrimination in
employment, throughout the country, genetic testing is being regularly utilized in criminal
prosecutions and paternity actions. In addition, Cardozo Law School Professor Barry Scheck
and his partner Peter Neufeld have been instrumental in utilizing genetic testing to help free
innocent individuals sitting on death row. See, Dwyer, Scheck and Neufeld, Actual
Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted
(Doubleday, 2000).
In United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993), genetic test results
were found to be admissible under the standards of the Federal Rules of Evidence
which requires the trial court to make a preliminary determination that the scientific
evidence will assist the trier of fact to determining or understanding a factual issue, the
reasoning or methodology is scientifically valid, and the reasoning or methodology
properly can be applied to the facts at issue. See also, United States v. Chischilly, 30 F.
3d 1144 (9th Cir. 1994), cert. denied, 513 U.S. 1132 (1995); United States v. Shea, 159
F.3d 37 (1st Cir. 1998)(admitting DNA evidence after prosecutors presented expert
testimony from the FBI laboratory comparing defendant’s DNA with DNA extracted
from several bloodstains inside the murder site and the getaway vehicle).
Genetic test results are admissible in paternity cases and are considered prima facie
proof of paternity. See, County of Hall v. Antonson, 231 Neb. 764; 437 N.W.2d 813 (Neb.
1989); Joy B. v. Glen D., 1999 Ohio App. LEXIS 3586 (Ohio Ct. App. 1999); Haines v.
Shanholtz, 57 Md. App. 92, 468 A.2d 1365 (Md. 1984)(court did not have to reach the issue
regarding scientific acceptance of genetic testing results because the state legislature had
already recognized its reliability of genetic testing. Such test results are presumptively valid
with the parties having the right to cross-examine the laboratory technicians who conducted
and evaluated the tests).
In Reed v. Boozer, 693 A.2d 233, 1997 Pa. Super. LEXIS 986 (Pa.1997), the Court
noted that unlike the traditional blood test which is admissible to exclude the possibility of
paternity, genetic testing is the only direct, as opposed to circumstantial, evidence of a genetic
link between the child and putative father and constitutes prima facie evidence of paternity.
Finally, most states and the federal government have enacted DNA collection statutes
requiring incarcerated felons to submit to DNA sampling for analysis and storage in a data
bank. See, Green v. Berge, 354 F.3d 675 (7th Cir. 2004). The proverbial slippery slope
connected with the development of DNA data banks was observed by M.I.T. Professor Marx
in 1998. See, Marx, DNA ‘ Fingerprints’ May One Day Be Our National ID Card, The Wall
Street Journal, April 20, 1998.
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Although the United States Supreme Court has yet to address the validity of these
DNA collection statutes under the Fourth Amendment, courts have upheld these laws in the
face of constitutional challenges. See, Green v. Berge, supra; Nicholas v. Goord, 2003 U.S.
Dist. LEXIS 1621 (SDNY 2003)(the governmental interest in obtaining reliable DNA
identification evidence in a database for possible use in solving past and future crimes
outweighs the limited privacy interests of prisoners.). However, the Ninth Circuit held that
forced blood extractions from federal parolees pursuant to the federal DNA Analysis Backlog
Elimination Act violated the Fourth Amendment in the absence of individualized suspicion.
United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003).
Biometrics, Global Positioning Systems and Employee Privacy
1.
Biometrics
Biometrics refers to technological advances in the means that government and employers
can identify and monitor individuals. These technological advances have increased the ability of
government and employers to implement security protections and time management systems
utilizing physical and behavioral characteristics such as finger imaging, handprint, handwriting,
iris, retina and voice scan. Many employers are moving from time clocks or sign in sheets to
biometric devices to monitor time and attendance. See, Lee, Find Answer to Time Sheet in
Technology, Charlotte Business Journal, 8/15/03; Armour, Biometrics to Imprint Job Site, USA
Today, December 5, 2002.
The use of biometric technology has been mandated on both the state and federal levels
regarding public assistance and immigration. Both California and New York appellate courts
have rejected constitutional challenges to state statutes that mandate biometric identification for
welfare applicants and recipients. See, Sheyko v. Saenz, 112 Cal. App. 4th 675, 5 Cal. Rptr.3d
350 (3d Dist, 2003); Medvedev v. Wing, 249 A.D.2d 755, 671 N.Y.S.2d 806 (3d Dept,
1998)(New York appellate court rejected claim that a public assistance applicant may refuse to
give finger-images on religious grounds).
Various immigration statutes mandate the use of biometric technology as part of an
entry/exit system for non-citizens. For example, the USA PATRIOT Act, 8 U.S.C. 1379, requires
the federal government to develop biometric identifier standards for use to verify the identity of
visa applicants and other seeking entry into the United States. In addition, the Enhanced Border
Security and Visa Entry Reform Act of 2002, 8 U.S.C. 302, states that entry/exit system must use
biometric standards no later than October 25, 2004. Consistent with these legislative measures,
on January 5, 2004, the Department of Homeland Security promulgated an interim final rule
regarding the implementation of biometric system for monitoring the entry and exit of aliens
from the United States. 69 FR 468 (2004).
At present, there is very little precedent regarding the use of biometric technology in the
workplace.
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In Res Care, Inc., 2001 NLRB LEXIS 397 (2001), an NLRB administrative law judge
held that an employer did not engage in an unfair labor practice when it failed to negotiate the
implementation of a biometric system that required employees to provide a finger-image when
they entered and left the facility. In reaching her holding, the ALJ relied on Rust Craft
Broadcasting of New York, 225 NLRB 327, 92 L.R.R.M. 1576 (1976), that upheld the unilateral
right of an employer to replace a manual timekeeping system with a mechanical system where
the basic work rule that employees continue to record their times of arrival and departure was not
changed. In response to the General Counsel’s argument that finger-imaging in the new
biometric system was highly intrusive, the ALJ noted that the record was silent regarding
whether the employer had fingerprinted employees other than through the biometric system. In
addition, she found that there was no testimony demonstrating that the biometric system recorded
fingerprints in a manner that would allow it to be utilized in the conduct of disciplinary
investigations.
In CFS North American, Inc. 2004 NLRB LEXIS 169, 174 L.R.R.M. 1303 (2004), the
NLRB upheld a finding by an administrative law judge that an employer engaged in an unfair
labor practice by interrogating and threatening termination to employees who discussed the need
for a union following the employer’s introduction of a hand scanner as a security device.
In the public sector, in State of California (Youth Authority), 23 PERC ¶30,114, 1999
PERC (LRP) LEXIS 127(1999), a California state administrative law judge concluded that a
public agency engaged in a unfair labor practice when it refused to negotiate in good faith
regarding the impact of the decision by the public agency to install a biometric check-in/checkout system in eleven (11) youth detention facilities. The biometric system was intended to
replace other less effective tracking systems utilized by the various facilities. Under the system,
employees would be required to enter a personal identity number and then touch a fingerprint
scanner. The ALJ concluded that the state agency had violated its duty to negotiate in good faith
when it refused the union’s request to negotiate the impact of the new system on the privacy of
the employees’ fingerprints, the use of the system in disciplining employees and the impact of
the delays caused by the new system.
2. Use of Global Positioning Systems
Global positioning system (GPS) is an electronic method that can track and monitor the
movement of a vehicle or individual. GPS was developed originally by the United States military
and permits the ability to track and locate vehicles and individuals through the use of a network
of 27 solar powered satellites circulating Earth. The orbit of the satellites has been arranged so
that at anytime of day a GPS receiver on earth can receive signals from at least four orbiting
satellites. GPS receivers will triangulate the information received from the satellites and
establish the geographic location of a vehicle or individual on earth from distance measurements
to the satellites. GPS receivers can be installed in a vehicle or cell phone.
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Media reports indicate that both private and public employers are beginning to utilize GPS
technology to monitor and investigate employees. GPS receivers are being installed by trucking
companies to monitor driver behavior. In addition, all new cell phones which are E911-capable
contain a GPS chip. See, Koerner, Your Cellphone Is A Homing Device,” Legal Affairs,
July/August 2003. Criminal prosecutions of public employees for filing of false records have
been successful utilizing the technology. One state has required private contractors to carry cell
phones with a GPS receiver to monitor their whereabouts. See, On the Road Again, But Now the
Boss Is Sitting Beside You, The Wall Street Journal, 5/14/04, p. 1.
Like biometrics, case law regarding the use of GPS technology is limited.
In State of Washington v. Jackson, 150 Wn. 2d 251, 76 P.3d 217 (2003), the Washington
Supreme Court held that under that state’s constitution, the police were required to obtain a
warrant based on probable cause prior to attaching a global positioning system to a citizen’s
vehicle. In reaching its holding, the Supreme Court recognized that the “use of GPS tracking
devices is a particularly intrusive method of surveillance, making it possible to acquire an
enormous amount of personal information about the citizen under circumstances where the
individual is unaware that every single vehicle trip taken and the duration of every single stop
may be recorded by the government.” 250 Wn.2d at 262.
In United States v. Bennett, 363 F.3d 947 (9th Cir. 2004), the Ninth Circuit ruled that the
testimony of a U.S. Customs Officer regarding his readings from a GPS device on a seized drug
smuggling boat about the boat’s journey was inadmissible because it violated the best evidence
rule. During the trial, the federal prosecutors relied exclusively on the witness’s description of
his observation of the graphical depiction from the GPS and did not offer the GPS or
downloaded copies of the GPS data.
In Preferred Transportation, Inc., 2003 NLRB LEXIS 236, 172 L.R.R.M. 1177
(2003), an NLRB administrative law judge admitted and credited GPS data over the General
Counsel’s objection and determined that the employer’s data undermined the employee’s
testimony regarding his activities on the day in question. Nevertheless, the NLRB concluded
that the employer’s decision to terminate the employee for falsifying information on incident
reports was unlawfully motivated based on the employee’s protected union activities.
Restrictions on the Use of Lie Detectors In Employment
One regularly utilized technological advancement in the past century that has resulted in
remedial legislative responses on the national and state level is the polygraph or lie detector
machine. Many of these laws substantially restrict the use and reliance upon such devices by
employers. This regulatory response resulted from the continued use of these devices despite
their limited scientific reliability. Prior to the enactment of the Employee Polygraph Protection
Act of 1988, 29 U.S.C. §2001, et seq., (hereinafter “EPPA”) polygraphs were commonly utilized
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by private employers. See, Shepard, Duston, Russell, Workplace Privacy: Employee Testing,
Surveillance, Wrongful Discharge and Other Areas of Vulnerability, 2d Ed. (BNA 1989).
1.
Federal Statutory Restrictions on Use of Lie Detectors.
Congress enacted the EPPA based on a finding that employers were denying employment
and discharging employees unjustly due to the misuse of lie detectors. See, James v.
Professionals’ Detective Agency, Inc., 876 F. Supp. 1013; 10 BNA IER Cases 590 (N.D. Ill.
1995). The EPPA constituted a legislative compromise between employee privacy interests and
employer and government interests that wanted to continue to utilize such tests, especially during
investigations into workplace misconduct. Furfaro and Josephson, Polygraph Testing and
Related Issues, N.Y.L.J., 5/23/89, p. 3. Congress granted the Secretary of Labor the
responsibility for regulating and enforcing the EPPA. 29 U.S.C. §2005(a) and (b); 29 CFR Part
801. However, public employers are exempt from coverage. 29 U.S.C. §2006(a).
The statute defines a lie detector to include a polygraph, deceptograph, voice stress
analyzer, psychological stress evaluator or similar devices utilized to provide an opinion
regarding the veracity of an individual. 29 U.S.C. §2001(3). Congress intended the EPPA to be
construed broadly. Veazey v. Communications & Cable of Chicago, Inc., 194 F.3d 850; 15 BNA
IER Cases 1057 (7th Cir. 1999).
The EPPA prohibits most private employers from directly or indirectly requiring an
employee or prospective employee from taking or submitting to a lie detector test. 29 U.S.C.
§2002(1). It also restricts the ability of employers to take adverse action against employees who
refuse to submit to a test. It prohibits the discharge of an employee on the basis of the results of a
lie detector test. 29 U.S.C. §2002(3)(B).
The EPPA permits covered employers, in limited circumstances, to require an employee
to submit to a lie detector test if the test is being utilized in connection with an employer
investigation into workplace theft, embezzlement, misappropriation or sabotage when the
employer has reasonable suspicion that the employee was involved in the events under
investigation and that the employee had access to the employer’s property. See, Jones v.
Confidential Investigative Consultants, 1993 U.S. Dist. LEXIS 5589 (N.D. Ill. 1993); 29 U.S.C.
§2006(d). Prior to requiring an employee to be subjected to a polygraph interrogation, the
employer is required to provide the employee with a written statement that includes the subject
matter of the investigation and the basis for testing that particular employee. See, 29 U.S.C.
§2006(d)(4).
The EPPA, 29 U.S.C. §2006(b) and (c), contains national defense and security
exemptions permitting the use of polygraphs for employees and contractors working for federal
departments and agencies such as the Departments of Defense, the National Security Agency, the
Central Intelligence Agency and the Federal Bureau of Investigation. Both the pharmaceutical
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and security industries are exempted from the prohibition against utilizing polygraph tests as a
job-applicant screening device. See, 29 U.S.C. §2006(e) and (f).
The procedures and content of a lie detector tests permitted under the exemptions
contained in 29 U.S.C. §2006(d), (e) and (f) are strictly regulated. See, 29 U.S.C. §2007(b).
These restrictions were aimed at eliminating adverse employment actions based solely on lie
detector results, to protect employees’ privacy rights, and to reduce the possibility of inaccurate
results. James v. Professionals’ Detective Agency, Inc., supra. Prior to the test, the individual
must be given a reasonable written notice stating the nature of the test and informing the
individual of his or her right to counsel. 29 U.S.C. §2007(b)(2). The failure to provide the
individual with the list of the questions prior to the test can result in EPPA liability for the
employer and the examiner. James v. Professionals’ Detective Agency, Inc., supra.
In addition, the individual must be given a notice stating, inter alia, that statements made
during the test may be relied upon by the employer regarding the alleged misconduct being
investigated. 29 U.S.C. §2007(b)(2). Individuals with medical documentation establishing that he
or she has a physical or psychological condition that might cause abnormal responses during the
test will be exempted. 29 U.S.C. §2007(b)(1)(D).
The individual being examined can terminate the test at any time. 29 U.S.C.
§2007(b)(1)(A). The examiner is prohibited from asking questions in a manner designed to
degrade or needlessly intrude on the individual being examined. 29 U.S.C. §2007(b)(1)(B). In
Jones v. Confidential Investigative Consultants, supra, an employer was denied summary
judgment in an EPPA lawsuit based on questions asked of a personal nature that were unrelated
to the theft being investigated. Furthermore, the EPPA provides that various topics are prohibited
areas of inquiry during such tests: religious and political beliefs or affiliations; union activities;
and sexual behavior. 29 U.S.C. §2007(b)(1)(C).
The EPPA provides for both public and private enforcement. Employees or prospective
employees are entitled to commence a private cause of action in federal or state court to
challenge EPPA violations by an employer. 29 U.S.C.§2005(c). Permissible remedies in such
litigation include monetary and equitable relief along with attorneys’ fees. 29 U.S.C. §2005(c)(1)
and (2). In addition, the Secretary of Labor has the authority to assess a civil penalty for EPPA
violations. 29 U.S.C.§2005(a). When a polygraph examiner is delegated the authority to decide
which employees should be examined and under what circumstances the examiner may be held
liable for an EPPA violation. In order to face such liability, it must be established that as a matter
of economic reality the examiner exerted control over the employer’s EPPA compliance. See,
Rubin v. Tourneau, Inc., 797 F. Supp. 247 (SDNY 1992); Fallin v. Mindis Metals, Inc., 865 F.
Supp. 834 (N.D. GA. 1994)(granting summary judgment to an examiner who did not control
employer’s compliance with EPPA); Kluge v. O’Reilly Automotive, Inc., 1994 U.S. Dist. LEXIS
10854 (D.Kan. 1994)(dismissing EPPA complaint against examiner because the allegations did
not support an inference that the examiner did anything more than administer the test).
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2.
State Law Restrictions on Use of Lie Detector Tests
Many states prohibit or regulate the use of lie detector tests by legislation and court
rulings. Shepard, Duston, Russell, Workplace Privacy: Employee Testing, Surveillance,
Wrongful Discharge and Other Areas of Vulnerability, 2d Ed. (BNA 1989), pp. 98, 119.
For example, Michigan’s polygraph law, MSA §18.186(26)(2), expressly prohibits
employers and their agents from discharging employees solely because of an alleged or actual
opinion that the employee did not tell the truth during a lie detector examination. See, Cyrus v.
Calhoun County Sheriff, 85 Mich. App. 397, 271 N.W.2d 249 (1978)(holding that sheriff was
prohibited from terminating a deputy in violation of Michigan polygraph law). See also,
Moniodis v. Cook, 64 Md. App. 1, 494 A.2d 212; 119 L.R.R.M. 3556 (1985)(upholding
substantial jury award for violation of Maryland’s polygraph statute). In Iowa, absent specific
authorization or notice that a polygraph examination was a condition of employment, a public
employee cannot be terminated for refusing to participate in a test. In Re Fairbanks, 287 N.W.2d
579, 1980 Iowa Sup. LEXIS 774 (Iowa 1980). Similarly, Tennessee prohibits employers from
taking any personnel action based solely upon the results of a polygraph examination. See, T.C.A
§62-27-101, et seq. However, in Vick v. Krystal Company, 1991 Tenn. App. LEXIS 753, 122
Lab. Cas. (CCH) P57,026, the court held that the Tennessee statute did not prohibit retaliatory
discharge for employees who refuse to participate in the polygraph test.
The use of lie detector tests for teachers and law enforcement employees has been
upheld. See, Los Angeles Police Protective League v. City of Los Angeles, 35 Cal. App. 4th
1535, 42 Cal. Rptr.2d 23; 10 BNA IER Cases 1192 (Cal. App. 2d Dist. 1995); Porto v. Harrison,
100 A.D.2d 870, 474 N.Y.S.2d 129 (2d Dept. 1984); Patch v. Mayor of Revere, 397 Mass. 454;
492 N.E.2d 77 (1986); Denzler v. Henrico, 27 Va. Cir. 486, 1984 Va. Cir. LEXIS 160 (1984). In
Montella v. Kelly, 202 A.D.2d 241, 608 N.Y.S.2d 461 (lst Dept. 1994), app. den., 83 N.Y.2d
758, 639 N.E.2d 416, 615 N.Y.S.2d 875 (1994), a police officer’s termination was overturned
based on the refusal of the administrative hearing officer to consider exculpatory polygraph test
results.
In some states, the use of lie detector tests has been held to violate the privacy rights of
employees protected by the state constitution or common law. Texas State Emp. Union v. Texas
Dept. of Mental Health, supra; Cordle v. General Hugh Mercer Corp. 174 W.Va. 321, 325
S.E.2d 111; 116 L.R.R.M. 3447 (W.Va. 1984); Ambroz v. Cornhusker Square Ltd., 226 Neb.
899, 416 N.W.2d 510; 2 BNA IER Cases 1185 (1987); O’Brien v. Papa Gino’s of America, Inc.,
780 F.2d 1067; 121 L.R.R.M. 2321 (1st Cir. 1986).
Some courts and arbitrators have placed restrictions on the admissibility of polygraph
evidence due to serious reliability questions. See, State v. Conner, 241 N.W.2d 447, 1976 Iowa
Sup. LEXIS 1169 (Iowa 1997); State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978);
Zanesville v. Sheets, 38 Ohio App.3d 24, 525 N.E.2d 842; 4 BNA IER Cases 477 (Ohio Ct. App.
1987)(results found to be inadmissible in police disciplinary hearing); Swope v. Florida
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Industrial Commission Unemployment Compensation Board of Review, 159 So.2d 653, 1963 Fla.
App. LEXIS 3044 (Fla. Dist. Ct. App. 1964); Glen Manor Home for the Jewish Aged, 81 LA
1178 (Katz, 1983). Alabama courts have held that the results of polygraph tests are admissible in
lawsuits challenging discharges where the terms of employment permitted the employer to
consider polygraph results. See, In Re Bostick, 642 So.2d 472, 1994 Ala. LEXIS 306; 9 BNA
IER CAS 1087 (Ala. 1994); Green v. American Cast Iron Pipe Co., 446 So.2d 16, 1984 Ala.
LEXIS 3807 (Ala. 1984).
3.
Duty to Negotiate Regarding Polygraph Testing
Polygraph testing has been held to be a mandatory subject bargaining requiring
negotiations with the recognized or certified union of employees. See, Austin-Berryhill, Inc., 246
1139, 103 L.R.R.M. 1079 (1979); Medicenter, Mid-South Hospital, 221 NLRB 670, 90 L.R.R.M.
1576; Glover Bottled Gas Corp. v. Local Union 282, 711 F.2d 479; 113 L.R.R.M. 3211 (2d Cir.
1983).
Conclusion
The introduction of new technologies by employers into the workplace presents new
challenges to our society regarding how far we will permit employers to invade the privacy of
employees. Much of this new technology was not developed for use in the private and public
workplaces. To paraphrase Lord Acton, an employer’s power to monitor its employees tends
to corrupt, but an employer’s absolute power to monitor using technology corrupts
absolutely.
In order to establish a fair and reasonable balance between the privacy expectations of
employees and the business reasons asserted by employers regarding the use of such technology,
a rational and cogent national discussion must take place. Although Congress was able to strike
such a balance in enacting the Employee Polygraph Protection Act of 1988 regarding the use of
lie detectors, it remains to be seen whether the present anti-regulatory climate regarding business
will permit a serious national response aimed at protecting employee privacy interests against the
use of new technologies by employers to spy on their workforce.
In the absence of the enactment of meaningful legal restraints by Congress, employers
perceive they have a license to exploit these various new technologies to intrude on employee
privacy. As a practical matter, most of these new technologies, such as the internet and
biometrics, were developed with substantial government financial support. The recent decision in
Ashcroft v. American Civil Liberties Union, 542 U.S.__ ; 2004 U.S. LEXIS 4762 (June 29,
2004), provides a suggestion for a balanced solution to respect employee privacy expectations in
the workplace that would meet the needs of employers. In Ashcroft v. American Civil Liberties
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Union, supra, the majority, in affirming an injunction barring enforcement of a criminal statute
regarding access to pornography on the internet by children, noted that “the current technological
reality” of blocking and filtering provides a less restrictive alternative to the criminal statute that
chills First Amendment activities. Similarly, new technological advances can provide a simple
means for protecting employee privacy in the workplace. Such technological tools as e-mail
encryption can assure employees that their e-mail will not be monitored unless the employer has
a reasonable suspicion of misconduct or misuse. Based on societal expectations that employees
are entitled to privacy expectations in the workplace, the federal government should support
research and development of a new technological reality that ensures employee privacy is
preserved.
Finally, these new technologies raise important evidentiary issues challenging labor and
employment attorneys to master technological issues in order to have the fruits of such
technology admitted into evidence. See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993); Miller, Science in the Courtroom, N.Y.L.J., June 1, 2004. When a party
anticipates the need to introduce technologically-based evidence, its counsel must prepare
carefully and ensure the availability of appropriate witnesses or such evidence may be excluded
by courts and arbitrators based on the failure to lay a proper foundation for its admissibility.
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