San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff's Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge's ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 You would think an average prosecutor has better cases to prosecute.  A Michigan man is facing charges of felony computer misuse.  The man, Leon Walker, used his wife's email password to review her gmal account.  In reading her emails, he learned that she was having an affair with another man.  See MSNBC report.  The couple has since divorced. 

The crime, felony computer misuse, was intended to prosecute identity theft and theft of trade secrets.  A privacy law writer wonders if a wife can expect privacy on a computer shared with a spouse.  I think I have the same question.  But, privacy or not, doesn't the District Attorney have real criminals to chase? 

Note:  in a recent CBS  news report, the prosecutor says Leon Walker downloaded the material in a "contentious way."  See report.  Mr. Walker says he learned his wife was cheating on him with her second husband.  Leon Walker was concerned because Husband No. 2 had beaten the wife, Clara walker, in front of her young son, who she had with Husband No. 1.  So, Leon Walker provided the emails to Husband No. 1 to help protect the young son. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I talked about the school issued missing computers last May.  See blog post.  The Philadelphia school district then activated the webcams on the laptops in the hopes of finding them.  But, as it turns out, most were not stolen, at all.  So, the district inadvertently downloaded thousands of pictures of various families in their homes.  It was a huge invasion of privacy.  

Well, now the district has settled one case for $610,000.  See Chicago Tribune story.  The tracking program was accidentally left on months after the laptops were located.  Some 56,000 unnecessary images were taken by the district.  The student who settled his case, Blake Robbins, then 15 years old, said he never reported the laptop was stolen and did not understand why the tracking program was activated.  The webcam system took some 400 pictures of him over a two week period.  

Blake received $175,000 to be placed in a trust for him.  The lawyer received $425,000.  The article does not explain, but I assume that was the lawyer's attorney's fees.  Most civil rights statutes contain an attorney's fees provision. 

The district no longer uses the web tracking program.  With this case, we start getting some idea of the limits on computer technology and privacy concerns. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 In a recent decision, the US Supreme Court affirmed the right of employers to review the text messages on employees' cell phones.  In City of Ontario v. Quon, the government employer searched the employees' cell phone for text messages.  The cell phone had been issued by the employer.  The City believed the employee had exceeded the limit on cell phone messages.  So, it got a private cell phone company to release the text messages.  In reviewing the text messages, the employer found some of the text messages to violate additional company policies.  Some messages had sexual content.  The Ninth Circuit Court of Appeals had found this intrusion violated the Fourth Amendment, since the employer could have simply looked at the recipient's address to see if the messages violated policy. 

The Supreme Court did not specifically address the isue regarding wherther the employee has a privacy interest in the text messages.  But, it did assume the employee has a privacy interest for the purposes of resolving whether the employer's actions were lawful.  In a close 5-4 decision, the Supreme Court found that the actions of the employer did comport with the Fourth Amendment.  See report. 

The US Supreme Court found that possibly exceeding the text message quota was sufficient reason for the intrusion into the text messages.  And, the court found that looking at the entire message, instead of just the addressee, was appropriate under the circumstances.  The court seemed to note with approval that the employer only looked at a sampling of the messages sent during work hours. The sexual nature of the messages did not help the employee's cause. 

The Supreme Court mentioned that this is a growing area and it would not issue any broad rulings. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Courts have only just started wrestling with the limits of online freedom in the workplace.  A recent decision from the New Jersey Supreme Court provides some guidance.  In the case of Stengart v. Loving Care Agency, the former employee left her job.  She also left behind her employer issued laptop.  On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account.  The account was password protected.  But, the employer's experts were able to retrieve the password and review the emails to the lawyer. 

Attorney client communications are, of course, privileged.  The company, Loving Care (or not) had a general policy that employees waived any expectation of privacy when viewing email at work.  But, the policy did not expressly apply to private email accounts and it did not warn employees that their private passwords could be retrieved from a hard drive.   So, the New Jersey Supreme Court found that the employer's policy did not apply to password protected private email relating to lawful matters including attorney-client privileged communication.  The emails  between the employee and her lawyer should have remained private, said the court.  The employer violated her expectation of privacy. 

The employer's law firm did review the emails between the employee and her lawyer.  They notified the plaintiff employee but not for many months.  So, the New Jersey Supreme Court found that the defense firm violated disciplinary rules.  The court referred the defense firm to the lower court for discipline.  Ouch!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs to the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee's emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer's email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link