Employers and Online Privacy
Online privacy from employers is one of the social and legal issues of online privacy. Online actions are monitored more closely, and words and actions online have effects in both cyberspace and the physical space. The social and legal consequences of words spoken and actions taken online are felt in the physical world, including termination from employment. Reasons for termination include maintaining reputation and professionalism within the workplace, and maintaining safety of employees.
Smyth v. Pillsbury
The Smyth vs. Pillsbury case was fought in 1996 in the Eastern District Court in Pennsylvania. Pillsbury had stated that on the company email server, higher-ups would not go through anyone’s emails, and if they did, adverse actions would not be taken. When Smyth, the plaintiff, sent an email to one of his supervisors through the company server, he was fired from his job, reason stating that the comments he sent to the supervisor were “inappropriate and unprofessional.” He brought suit, claiming that Pillsbury violated his right to privacy, and that he was therefore wrongfully terminated.
The first thing the courts noted was that Pennsylvania common law was “at-will” employment; this meant that any employer could fire any employee for any reason (the only exceptions being serving jury duty, reports of nuclear codes, and notice of a prior conviction). Thus, the plaintiff was not protected under the common law.
The plaintiff tried to argue the Constitutionality of the provision, stating that the common law was a “tortuous invasion of privacy” and "highly offensive." The courts ruled the company server was meant to be used for internal corporate communications between employees. In using this server to send his email, Smyth gave up any expectations of privacy that he had. Additionally, he sent this email to his supervisor. In doing so, he forfeited his privacy expectation. Further, the courts ruled that in any company, the employers’ interest in maintaining professionalism, and preventing inappropriate comments (some of which can include illegal activity) outweighs any expectation of privacy that an employee has.
Pietrylo v. Hillstone
The Pietrylo vs. Hillstone case was fought in the District Court of New Jersey in 2009. The plaintiffs of the case were former employees of Hillstone Restaurant. They had a Spec-Tator private group chat - essentially a “bitch session” - for which participants needed to have authorized access to see and contribute content. Managers of Hillstone gained access to the group chat when an employee gave the password to her account. Moreover, they accessed the account 5 different times using her account and password. After seeing the content of the chat, Hillstone managers fired all the employees that participated. Thus, a lawsuit ensued against Hillstone for violation of the Stored Communications Act.
The main questions in this case are: did the defendants violate the Stored Communications Act? Did the defendants violate the plaintiff’s privacy? And finally, did the plaintiffs wrongfully terminate the plaintiffs? The punch line into winning this case was that the plaintiffs had to offer evidence that the managers knowingly , intentionally, or purposefully accessed Spec-Tator without authorization. St. Jean was the one who gave her password to the manager. When she was asked about the situation, and why she gave her password when the managers, she stated in her testimony “I thought that if I didn’t give it to them, I’d be in some sort of trouble.” The plaintiffs argued that this was not true authorization, as she was clearly coerced and not comfortable giving this information; the jury agreed. Moreover, when the managers accessed the account 5 times, it was clear that what they were doing was intentional. The ruling of the court ruled in favor of the plaintiffs for compensatory and punitive damages, and this was thus a violation of the Stored Communications Act.
Arias v. Intermex
The Arias v. Intermex case , was fought in 2015 in the Eastern District Court in California. The plaintiff, Arias, filed several complaints against Intermex for violations of privacy. She had left her job at NetSpend to work for Intermex, and Intermex had told her that her work with Intermex was not an issue. Intermex had required that the plaintiff keep her phone on her at all times, even off duty, to answer phone calls pertaining to work. They also had required that she download an app called Xora, and through this, the company was able to track her driving speed, including while off duty. She compared the invasion of privacy to a “prisoner’s ankle bracelet.” She deinstalled the Xora app, and was scolded at work. After a few weeks, when she refused to reinstall it, she was fired from Intermex, and went to work back at NetSpend. In addition to this, the CEO of Intermex called the CEO of NetSpend, saying that she was disloyal to NetSpend by being employed at Intermex. NetSpend then fired her, citing the telephone call as the specific reason for her termination.
This case brings up an important topic: do employers have a right to track their employees 24/7? From a legal standpoint, this case uses the Katz test (established in 1967 from the Supreme Court case Katz v. United States). The Katz test brings into question whether or not the plaintiff had a reasonable expectation of privacy and whether or not society recognized that as reasonable. According to the court, the plaintiff had a reasonable expectation of privacy, and that what Intermex was doing would be considered highly offensive to any reasonable person. Intermex’s conduct played a substantial role in the harm the plaintiff suffered, including economic damages, reputation damages, pain and suffering, emotional distress, and humiliation/embarrassment.
Employees have a Constitutional right to their privacy. It is reasonable to expect that employers will not use data to track where you are, how fast you are driving, and access password protected accounts without authorization. From a legal standpoint, these have been considered highly offensive to any reasonable person, and society has recognized that one has a reasonable expectation of privacy in these regards.
As was decided in the Pillsbury case, employers have a right to protect their reputation, employees, and professionalism. Any online activity that they can freely access, such as public social media posts can be cited as a reason to terminate employment. Arguably, employers want their company to have a good reputation by having employees that represent them well outside of work. It is also suggested that since potential employees investigate the employer with all available means that the employer should be allotted the same privilege within reasonable means. Employers are pressured to hold employees accountable for wrongdoings, and as such, they feel they have an obligation to do so by monitoring what their employees do, on and off social media. The ethical issues therein lie where one must consider how far is too far in terms of monitoring employees for the sake of reputation.
- , https://scholar.google.com/scholar_case?case=14078980065370881399&q=Smyth+v.+Pillsbury&hl=en&as_sdt=80000006
- , https://scholar.google.com/scholar_case?case=10596932099553696224&q=Pietrylo+v.+Hillstone&hl=en&as_sdt=80000006
- "Intermex Complaint"
- , https://scholar.google.com/scholar_case?case=9210492700696416594&q=katz&hl=en&as_sdt=80000006.