Employee privacy and expectations of privacy in the electronic age

Employee privacy and expectations of privacy in the electronic age

Does your organization have a policy concerning the use of its computer equipment? Has it addressed the use of E-mail by employees for personal communications?  Has it distributed copies of these policies to the staff?

The expectations of employees concerning E-mail privacy and the privacy of other material stored or sent on an employer's computer equipment for personal reasons is becoming a significant issue. The topic has been placed on the table in the course of collective bargaining while elsewhere employers have unilaterally adopted policies.

It would seem prudent for an employer to have a policy in place limiting or prohibiting the use of employer E-mail programs by a staff member for personal business. Some have suggested that without such a policy in place an employer could be exposed to claims of invasion of privacy if it reads E-mail records or the employee's "personal files" stored in the employer's computer.

On the other hand, complaints could arise alleging libel or unlawful discrimination resulting from an individual's using the employer's computer equipment. Some have observer that sending out an E-mail with a return address like  from "JSmith[at symbol]XYZagency.gov" is much like sending out a letter on government letterhead. 

What should be set out in such a  policy?

At a minimum the employees should be told that the use of  the "employer's E-mail program is limited to "department or agency business" and that they should not expect any "privacy" with respect to any information, personal or private business related, received, transmitted or stored electronically on the employer's computers.

The Society for Human Resource Management has recommended that employees be required to acknowledge in writing that they have been advised of the employer's computer/E-mail policies.

The following is adopted from the Society's model statement concerning the use of company equipment and the employer's E-mail capability by employees for personal purposes:

I, [name of employee], am aware and agree that, regardless of its source, [name of the employer] has, and may exercise, its rights to review, intercept, access, record, use and disclose all E-mail correspondence as well as all files and records in its computer system at any time, with or without any notice to employees, or the consent of any employee. I also understand that I have no right to expect any privacy with respect to any material I send, receive, place or retain in or through the [name of employer]'s computer system, including, but not limited to, E-mail sent to or received by me from a coworker or from an another individual or organization. I also understand and agree that the use of any office equipment, including any E-mail capability, in violation of this policy may  result in disciplinary action being taken against me.

A number of law suits have been filed against employers alleging that offensive, discriminatory or libelous communications concerning an individual, was created, transmitted or circulated by employees using the employer's electronic data processing equipment. For example, in Strauss v Microsoft Corporation [USDC SDNY, 91 Civ 5928], a federal district court allowed a former Microsoft employee,  Karen  Strauss, to introduce E-mail messages between Microsoft workers as evidence of sexual harassment.

Other means of communicating the employer's policy to staff include having a copy of the statement printed in the employer's "employee handbook"; posting a copy of the policy on all employee bulletin boards; and having a "reminder" greet the computer user each time he or she activates a computer terminal or desktop computer. It may also be advisable to periodically circulate a copy of the policy to all staff members or from time to time attach a copy of the policy to the employees' paycheck.

Once a policy is established, the employer should adopt procedures, and designate the individuals, to implement it and, in addition, periodically review it in order to "keep it current."

On a related issue, does your organization have a policy prohibiting employees from "electronically sabotaging" the work of another staff member or the company's database? This may become an increasing important concern as more and more work is performed electronically.

The New York State Department of Education's State Archives and Records Administration has published a booklet Managing Records in E-Mail Systems. The booklet includes a sample E-mail policy as well as suggestions concerning "E-mail etiquette." For a free copy of the booklet, write to the State Records Advisory Services, 9C71 Cultural Center, Albany, New York, 12230 [518-474-6771].

Employers also should be familiar with the provisions of the Electronic Communications Protection Act of 1986 and the federal Wiretap Act which set out a number of standards dealing with employee privacy in the workplace.

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, Appellate Division, First Department

The New York City Transit Authority [Authority] appealed a Supreme Court ruling rejecting its Article 75 petition seeking to vacate an arbitration award.

The New York City Transit Authority had sought a court order vacating a determination by an arbitrator that had set aside the Authority's determination that one of its employees [Harasser] was guilty of sexual harassment of his co-worker and the penalty it had imposed on Harasser -- termination from his position. Supreme Court denied the Authority's Article 75 petition to vacate an arbitration award, confirming the arbitration award and dismissing the proceeding. The Authority appealed the Supreme Court's decision.

The Appellate Division reversed the lower court's decision, on the law, granted the Authority's petition, and the remanded the matter to a different arbitrator to [1] enter a finding that Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's sexual and other discriminatory harassment policy and [2] to pass upon the appropriateness of the penalty of termination imposed by the Authority on Harasser.

The Appellate Division, in reversing the Supreme Court's ruling,  noted that [1] the arbitrator had "expressly" agreed with the pertinent factual findings set out in the investigation report submitted by the Authority's Office of Equal Employment Opportunity [EEO],* but [2] had nonetheless, "incredibly and inconsistent with his own findings, the arbitrator  ruled that [Harasser's] conduct did not "rise to the level" of sexual harassment."

Further, said the court, "[t]he arbitrator's decision fashions a remedy that violates public policy." Moreover, the award contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on the involved co-worker to take appropriate action if she felt Harasser's comments were inappropriate and that such a "blame the victim" mentality inappropriately shifts the burden of addressing a hostile work environment to the employee.

The Appellate Division then opined that the arbitrator's decision belies the realities of workplace sexual harassment. "The fact that the victim did not earlier report [Harasser's] behavior is not atypical and should in no way be construed as absolving [Harasser] of his misconduct" and the arbitrator's decision shifts the onus to the employee to report and fend off the harasser.

Accordingly, explained the Appellate Division, "public policy prohibits enforcement of the arbitration award in this case."

* EEO's report concluding that there was reasonable cause to believe that the Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's' sexual and other discriminatory harassment policy, which policy defined sexual harassment to include "unwelcome sexual advances and other behavior of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02442.htm

Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se

Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se

Sears v City of New York, 160 AD3d 471,

Jamel Sears, a probationary firefighter, died as the result of suffering dehydration while performing the New York City's Fire Academy's physically demanding Functional Skills Training (FST) exercise course, a course designed to simulate actual firefighting tasks under a controlled environment. Sherita Sears submitted a claim for certain benefits pursuant to General Municipal Law §205-a, claim predicated on an alleged violation of Labor Law §27-a,

The Appellate Division ruled that the plaintiff in this action, Sherita Sears, was not entitled to recover under GML §205-a,*as the injuries Jamel Sears had sustained while participating in FST exercises were not the type of occupational injury that Labor Law §27-a** was designed to address.

The court explained that the FST course was "part of training and not part of firefighting per se" and was for the purpose of developing the firefighter's ability to perform certain activities efficiently, which activities were a necessary and important part of their job as it ensures that a firefighter could effectively perform those tasks during an actual fire.

                                         

The Appellate Division opined that the "risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor," apparently a reference to provisions set out in Labor Law §27-a(2)(2) in particular.

* GML §205-a, provides, in pertinent part, an "additional right of action to certain injured or representatives of certain deceased firefighters" in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department,

** Labor Law §27-a(2), "Safety and health standards for public employees", provides in pertinent part, that every employer shall "(1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02430.htm