Friday, October 14, 2016

Employee’s misuse of employer’s email results in dismissal


Employee’s misuse of employer’s email results in dismissal
Posted by Employment Law News, WK WorkDay - A service provided by Wolters Kluwer Legal & Regulatory U.S.

[Internet links highlighted in color]

Fire Captain terminated after using Department’s internal email system to transmit religious messages
By Dave Strausfeld, J.D.

A fire department captain who was discharged for sending Christian messages to coworkers via the department’s internal email system was unable to prove that his First Amendment free speech rights were violated, held a Washington Court of Appeals, affirming a lower court’s grant of summary judgment. The email system was a nonpublic forum, and limiting its usage to fire department business was reasonable and viewpoint neutral. Judge Lawrence-Berrey filed a separate concurring opinion.

In dissent, Chief Judge Fearing argued the department had opened the email system to religious messages by forwarding newsletters from its health insurer about solving personal problems and living a healthy lifestyle, because the government may not “prefer secular chatter over religious oration” (Sprague v. Spokane Valley Fire Department).

The text of Mr. Strausfeld summary is posted on the Internet at:


Employee’s termination for sending 900 company emails to personal account did not constitute reverse discrimination

Sending over 900 company emails to his personal or other outside account, including over 100 containing confidential client information, was a legitimate nondiscriminatory reason for firing a 59-year-old employee, notwithstanding that he was allowed to work at home on the company’s secure network and that an NLRB law judge found some of the employer’s confidentiality rules overbroad.

Accordingly a federal district court in Michigan granted summary judgment against his federal and state law reverse race and gender discrimination claims as well as his age bias claim under the ADEA. His FLSA claim for unpaid overtime also failed (MacEachern v. Quicken Loans, Inc., September 21, 2016, Steeh, G.).

The text of Ms. Kapusta’s summary is posted on the Internet at:


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Other decisions addressing an employee’s alleged misuse of an employer’s electronic equipment include:

Fraser v Nationwide Mutual Insurance Co.
USDC, 135 F. Supp. 2d 623
The court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

On appeal the USCA, Third Circuit, affirmed the District Court's grant of summary judgment in favor of Nationwide on Fraser's wrongful termination claim but vacated and remand the state claims, and his bad-faith claim and forfeiture-for-competition claim for consideration in light of the Pennsylvania Supreme Court's decision in Hess v. Gebhard and Co., Inc., 570 Pa. 148.

Leo Gustafson v Town of N. Castle, 
45 A.D.3d 766
The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York
2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports]
The employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that [1] the arbitrator exceeded his authority under Education Law §3020-a, and [2] the award terminating Ghita's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor,
App. Div. 3rd Dept., 283 A.D.2d 754
This unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

Fraser v Nationwide Mutual Insurance Co.
USDC, 135 F. Supp. 2d 623
The court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.


The full text of the Wilkinson - Casey decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html

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