'Privatizing Workplace Privacy' (Marquette Law School Legal Studies Paper No. 11-27) by Paul Secunda
comments that -
Perhaps “the” question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer’s text messages from his city-issued pager.
In a cryptic decision, Justice Kennedy held for a unanimous court that assuming the officer had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated by the Supreme Court in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in O’Connor, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these legal tests suggest that questions of workplace privacy in the public and private sectors should be treated the same.
Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a new, two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment’s warrant and probable cause requirements to those searches undertaken for investigatory purposes.
Secunda argues that -
even if public employee records are required to be disclosed in some circumstances to their employer or to the public, there is still substantial room to protect many type of personal documents and materials which may exist in that employee’s personal office space. To the extent that such materials are not subject to disclosure under the public records law, they should be protected from targeted, investigatory searches by government employers by the warrant and probable cause requirements of the Fourth Amendment for the reasons discussed in detail above.
A majority of the Supreme Court in O’Connor appear to sanction this approach. Justice Scalia in his concurrence, joined by the four members of the plurality, observed that, “[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer.” While one may not have a privacy interest in one’s workplace communications as to the public because of the operation of the public records law, one can still have a privacy interest against the government employer if previous employer actions suggested to the employee that they had a reasonable expectation of privacy in a physical or electronic location in the workplace. For instance, and as Justice Kennedy pointed out in the majority opinion in Quon, “many employers expect or at least tolerate personal use of [employer-owned communication devices] by employees because it often increases worker efficiency.” Under this scenario, employees may still have a reasonable expectation of privacy in their employer-owned communication devices vis-à-vis their government employers.
The important point here is that through contextualization of the public workplace search -- with a focus on both the reason for the search and the identity of the party seeking to undertake the search -- a more privacy-protective legal standard may be fashioned for investigatory workplace searches in the public sector undertaken to discover employee wrongdoing. Indeed, reestablishment of the warrant and probable cause requirements for investigatory searches will strengthen public employee workplace privacy rights and restore such rights to an appropriate higher level of constitutional protection under the Fourth Amendment than similar common law privacy protections in the private-sector workplace.
All employees, whether public or private, should retain some reasonable expectation of privacy in their physical and electronic locations at work. Such privacy rights promote productivity, positively impact employee morale, and support the recruiting and retention of highly competent employees. The proper level of privacy protection, this article maintains, should be based on whether the search involves a public sector or private sector workplace. Public sector workers are entitled to greater levels of privacy protections than their private sector counterparts based on the text of the constitution, the immense power of the government as employer, and the critical oversight role public employees play in a representative democracy.
To ensure this higher level of workplace privacy protection for public employees, and to reverse the equalization of public and private workplace privacy rights post-Quon, this article argues that public employer searches of employee physical and electronic locations in the workplace should be bifurcated based on the nature of the search. If the search is undertaken for routine, noninvestigatory purposes, the special needs exception to the warrant requirement should apply and such searches should be considered reasonable without a warrant if related to legitimate work reasons and reasonable in scope. On the other hand, investigatory workplace searches to uncover employee misconduct or wrongdoing should be treated like other targeted government searches where a sanction or penalty is possible. Such searches should require the employer to obtain a warrant based on probable cause in front of a neutral magistrate unless the employer can prove that special needs exist to conduct the investigatory search without a warrant.
