PERSONAL USE OF ELECTRONIC EQUIPMENT IN THE WORKPLACE

The use of computers in the workplace has become so pervasive that, whether or not employers officially permit personal use, such use has become the norm. Where “reasonable” personal use is allowed, the lines between excessive use and acceptable or normal use may not always be easy to draw.

For example, Coleman v. Review Bd. Of the Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015 (Ind. App. 2009), held that an employee who was discharged for violating the employer’s e-mail policy forbidding more than “de minimus use,” was entitled to unemployment compensation because the policy provided no ascertainable standard and the employee’s e-mail traffic was scarcely excessive.

Another example, Bowman v Butler Twp. Bd. Of Trs., 923 N.E.2d 663 (Ohio App. 2009), held that a town could not discharge its firefighter employees for viewing violent, but non-pornographic videos. The court explained that the town provided no guidance other than that “ethical standards should be observed,” and also permitted its firefighters to use firehouse computers for personal use in their downtime. Undefined “ethical standards” were too vague to be enforceable against the employees.

The situation becomes a bit more complicated when it involves a public sector workplace, because a government employer’s monitoring of its own employees’ electronic communications is subject to scrutiny under the Fourth Amendment. In City of Ontario, California v. Quon, 130 S.Ct. 2619 (2010), the United States Supreme Court recognized that it must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The Supreme Court explained that applying too broad a holding concerning employees’ privacy expectations would “risk error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Supreme Court made it clear that the result in Quon is to be interpreted narrowly, to avoid unintended implications on future cases that cannot be predicted. Quon dealt with a governmental employer asserting that it had the right to read text messages sent and received on a pager the employer owned while issued to an employee. There were “reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose.” The Supreme Court held that, while the employee did have a reasonable expectation of privacy as to the content of his text messages, the search by the employer was reasonable under the “special needs” of the workplace exception. That exception applied because the city was seeking to ensure it was not paying for extensive personal communications.

In the age of thriving technological advances and the prevalence of many different social media outlets, the question of the reasonableness of an employee’s personal use of computers in the workplace, or other electronic communication devices, is one that ripe for debate.

The Mavrick Law Firm represents employers in labor and employment law matters. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.