E-mail and Internet Privacy at Work

NO PRIVACY

In a nutshell, assume that you have no e-mail or internet privacy while at work.  Most employers have an "Electronic Media Policy" which gives the employer the right to monitor their employees' email and internet usage.  These Electronic Media Polices often permit employers to monitor email, including personal email (gmail or hotmail etc.) and internet surfing in real time.  Do you really want your employer to know your weekend plans or how your birthday party went?  Even if your employer does not have the written policy per se, most Courts seem to hold that an employee who uses an employer provided computer or other electronic media device does not have the same "expectation of privacy" that we as American citizens have in our personal lives. 

WHY DOES IT MATTER

The issue with electronic media really matters for two reasons.  The first reason I alluded to above, we as employees really don't want our employers looking into our personal lives uninvited.  No real good comes of it and it can lead to problems.  The second reason is more concrete and has to do with the employee who makes a claim or complaint against their employer.  The employer's electronic media policies often allow an employer to go back once they have been sued by an employee and look at the employees old emails and web surfing to find evidence to use against the employee. This can include emails from the employee to their attorney or other communications that the employee might otherwise be able to keep private.  Sometimes employers can find evidence of employee activities that had the employer known about at the time they occurred, could have been used to fire the employee.  This type of "after acquired evidence" is admissible in lawsuits and can severely limit the damages a wrongfully treated employee can receive from their employer. 

The law in this area is developing.  At some point it may swing back to be more protective of employee privacy.  However, for the time being, it is better to not conduct your personal life on company electronic devices, and certainly do not communicate with your attorney on company email.  For more information and a free consultation please call Gienapp Law, APC at 619-234-3054.

At Will Employment

AT WILL

Almost all employees in California are "at will" employees. With the exception of those few employees with employment contracts and those who are covered by union agreements, we are "at will."   What does it mean to be an employee "at will?"  I like to say that an at will employees can be hired or fired for any reason or no reason, as long as it isn't the "wrong" reason. 

ANY REASON OR NO REASON

The one idea that is consistently difficult for the California employees to accept is that an at will employee can be subject to unfair, arbitrary, and capricious treatment by the employer.  For example I have spoken with many employees who were accused of stealing from their employer.  In some cases the employee had proof that other employees were the culprits and yet the true culprits were not fired and the innocent employee is fired.  This is not an unlawful or "wrongful" termination.  The same concept applies if the employer fires an employee because they don't like the employee's personality, looks, or clothes.  The law gives employers leeway to hire and fire whomever the employer feels will do the best job.  Even if the person who will actually do the best job is someone the employer just fired. 


THE WRONG REASON

The California employee cannot, however, be fired, demoted, or etc. for the "wrong" reason.  In general terms the "wrong" reason is either because of (1) some unchangeable characteristic that is protected under the law; age over 40, race, sex, religion, national origin, and sexual orientation; or (2) because the employee engaged in some protected activity like filing a claim for workers compensation or complaining about an unsafe or unlawful working condition, AKA whistle blowing.  These are just some examples of protected activities.  If the employer takes action against an employee and it is because of either of these two reasons, the employer's action may be illegal.  If you believe that your employer has taken unlawful action against you, call Gienapp Law, APC at (619) 234-3054 for a free consultation.  You can visit our web site here.