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USE NOTE

This article, and the others listed above, are originals written by Rolando Pasquali. Many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area

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Employee Privacy in the Information Age

by Rolando Pasquali

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Some employers provide computers for work at home. Does the employee have a right to privacy in personal data stored on those computers? No, not if the employee agreed to a company policy which restricted equipment use and allowed for company monitoring.

          An insurance company executive was given two computers, one for his office and one to work at home. He was fired when the company found that he’d been using his office computer to browse pornography.

          The employee sued for wrongful termination. He said that the real reason for firing was money. The executive was fired less than a week before vesting in his second of three annual stock purchase agreements. The first stock purchase yielded the executive $1.2 million. According to the employee, the pornographic websites just “popped up” on the office computer, he denied visiting them intentionally. The company demanded return of the home computer. The employee resisted, offering to buy it instead. No dice, responded the employer, whose lawyers cautioned that “nothing should be deleted from the machine’s hard drive.” The home based computer contained the employee’s tax returns, family letters, and personal financial information. Wanting “everything” stored on the computer was just part of what the employee claimed was a “scorched earth” way of defending his lawsuit. The former executive asserted his constitutional right to privacy.

          The company said that showing him to be an x-rated web-surfer was the whole point! If he visited sexually explicit websites on his computer at home, then the visits at work were not accidental. Besides, they claimed, this employee gave up his right to privacy. He’d signed a monitoring agreement stating that the computers were: (1) Company Property; (2) To be used only for Company Business; (3) Never to be used for “improper, derogatory, defamatory, obscene or other inappropriate purposes;” and (4) Subject to company monitoring “as needed.” The court ordered the equipment’s return, with limited safeguards for the employee’s personal data.

          Employees who are offered take-home equipment and a monitoring agreement now have two choices: (A) Refuse to sign and don’t take employer-owned equipment; or (B) Accept the employer’s property, knowing full well that they’ve given up their right to privacy. Once a properly drafted policy is signed: “The employee may have his cake and eat it too-he can avoid any invasion of his privacy by using his computer for business purposes only, and not for anything personal.” TBG Insurance vs. Superior Court, L.A. (2002) 96 Cal.App.4 th 443

- by Rolando Pasquali

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