Ten years ago employees wondered if their employers could look through their purses merely because they brought them to work. Today employees ask whether their employers own all electronic data created, viewed, or stored on their work computers and BlackBerrys.
In New York, private sector employees may have a reasonable expectation of privacy in their work computers, cellular phones, and other electronic devices. In 2001 the 2nd U.S. Circuit Court of Appeals confirmed in Levanthal v. Knapek[FOOTNOTE 1] that an employee may have a reasonable expectation of privacy in the content of her work computer, especially where her employer maintains an unclear technology usage policy. Since Leventhal, employers in the 2nd Circuit have crafted broad and detailed technology policies aimed at draining reasonable expectations of privacy out of employees’ work-related technology.
These policies aim to bind employees to notices stating, more or less, that (1) all electronic data created, stored, received, or sent from the employer's electronic device or system (e.g., computer server or third-party wireless service provider), regardless of the purpose for which it is created, is the employer's property; (2) the employee cannot expect such data to remain private; and (3) the employer may monitor and obtain such data at its discretion and without further notice to the employee.
Although employers expect that these policies will permit unfettered access to employees’ personal electronic data, courts are increasingly scrutinizing their enforceability. In Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp, LLC,[FOOTNOTE 2] the court was incredulous of the employer’s reliance upon its policy to defend its accessing of an employee’s personal Hotmail e-mail account. The court explained, “[i]f [an employee] had left a key to his house on the front desk at [his workplace] one could not reasonably argue that he was giving consent to whoever found the key, to use it to enter his house and rummage through his belongings.”[FOOTNOTE 3] It now appears in the 2nd Circuit that employees do not check their privacy at the door to their workplace.
