Has Big Brother Really Arrived?
With the recent ruling awarding 30 million dollars to saleswoman
Laura Zubulake, who won her sex discrimination case against
UBS with the help of subpoenaed e-mail messages, a Pandora’s
box of issues is emerging regarding work-product privileges in this
new age of electronic communications. Many states now have laws
requiring employers to preserve all electronic documents, including
those generated by their employees on personal business. So we asked
you to tell us if you think it’s fair to eavesdrop on employee
conversations via phone or e-mail? Are our Blackberries and home
computers no longer private? And how far do you think this will
go? This is what you said!
Judith J. Sullivan, Esq.
Counsel
Emmet, Marvin & Martin, LLP
 E-mail privacy and the storing
of electronic data are red hot topics for lawyers engaged in the
business of counseling corporate clients. It seems computers and
the internet have eradicated the privacy we had enjoyed in the business
world in face to face meetings, typing letters on a typewriter,
or calling someone on the telephone without caller id.
The question is now, how much privacy is one entitled to in ordinary
civil business life? Well, the lawyers were out of the gate first,
counseling their clients to furiously scribble in policies in the
employee handbooks (including lawyers like me) about how nothing
you do at work is private, including adjusting your skirt as you
walk down the hall with the cameras in place. Data cards and computer
log ins can even track your movements in and out of the office and
what websites you have been on. Rats! That lunch time shopping excursion
is in jeopardy! But I don’t think the race is over, as the
judges are just getting their arms around these topics.
Generally speaking, if you are an employee and doing a good job,
you shouldn’t have to worry about any of this, until your
employer decides that maybe they don’t want you any more.
Four phone calls or e-mails to your mother in Topeka in one day
on the company equipment can easily provide the basis for them to
let you go (well, yes, I am exaggerating, but you know where I am
going). But then again, if this is what they are grasping at to
let you go, then you probably shouldn’t be working there anyway.
And if you are a senior management member, I’d think twice
about listening in on someone’s phone calls.
I, for one, have 8,000 e-mails in my e-mail box (yes, I’m
one of those really busy women you keep reading about in this newspaper),
so if my employer wants to read them, go right ahead! When they
are done in year 2020, then they can tell me which ones were against
company policy while I enjoy my retirement in the French Riviera.
But seriously, here is what you do (and this applies to senior executives
all the way down), so pay attention now—rite every e-mail
as if you were going to see that e-mail blown up in court on an
exhibit with you standing on the witness stand defending it. You
should cut this out of this newspaper and paste it on top of your
PCscreen! You’ll never make a mistake again!
Wendeen H. Eolis
CEO
EOLIS International Group, Ltd.
 With
the recent ruling awarding 30 million dollars to saleswoman Laura
Zubulake who won her sex discrimination case against UBS with the
help of subpoenaed e-mail messages, a Pandora’s box of issues
is emerging regarding work product privileges in this new age of
electronic communications. Many states now have laws requiring employers
to preserve all electronic documents, including those generated
by their employees on personal business.
If employees are advised, in advance, that e-mail and telephone
resources are for business purposes only (except in emergencies),
and that for quality control their telephone and e-mail communications
may be reviewed (therefore, if they want a private communication,
they must separate it from office equipment and office matters),
then I think it is fair and reasonable to review telephone, computer
and Blackberry communications that are relevant to the business.
The key to the reasonableness of this policy is making it clear
in pre-employment interviews and in a personnel policy handbook.
Otherwise I would be absolutely opposed.
In our office, employees are so restricted, except with express
approval of a supervisor, in which case, for the period approved,
their communications are not subject to company review.
More generally, I am opposed to scrutiny of private telecommunications
and data on home computers, except where there is genuinely probable
cause to believe they are connected to a felony. I believe that
the current provisions of the Patriot Act provide overly broad powers
to the government with respect to invasion of privacy.
Nina Roket, Esq.
Partner, Olshan Grundman Frome Rosensweig & Wolosky LLP
 Is
technology compromising privacy in the workplace? Are the ever-expanding
technological advances steadily diminishing employees’ personal
spaces? And do the potential benefits of employee surveillance outweigh
the risks? These are a few of the issues that are current hot topics
in the area of workplace privacy —or lack thereof.
With organizations monitoring their networks in increasing numbers,
the expectation and boundary of employee privacy needs to be clearly
drawn.
Although employee surveillance may aid an employer with quality
control and client protection, employees, as a result, must deal
with an invasion of their privacy. Although advocates for both sides
can justify their positions, one thing is for sure—the constant
struggle between employers in monitoring their employees and employees
not wanting their every communication in the workplace logged has
created an essential conflict that is only further frustrated by
new technologies that make it possible for employers to easily monitor
and keep track of their employees’ daily interactions.
To date, such monitoring is virtually unregulated, unless an employment
contract or company policy specifically provides otherwise. Even
in that instance, employees are not guaranteed their privacy. Employers
may watch, listen and read most, if not all, of employees’
workplace communications. Until further legislation regulating employee
surveillance is enacted, individual employees must know that their
daily lives may fall under the corporate magnifying glass. Right
or wrong, employees today need to assume that workplace correspondence
and interaction are an “open book,” susceptible to scrutiny
and examination by their employers.
Monica Bay
Editor-in-chief
Law Technology News
 As
Sun Microsystems’ Scott McNealy famously said, “You
have zero privacy .... get over it.”
At least in the workplace, that is. In all seriousness, I think
we must distinguish between workplace privacy and personal privacy.
When you are on the payroll, your time and workproduct belong to
your employer. And you are responsible for everything you say and
do. Companies, in my opinion, have an obligation to provide a workplace
environment free of harassment and bigotry of any type.
While editing The Price of Harassment: Rena Weeks v. Baker &
McKenzie (American Lawyer Media Books), which chronicled persistent,
subtle sexual harassment at the world’s largest law firm,
I learned that harassment can be both overt and very, very subtle.
We must be vigilant about ANY behavior that degrades, belittles,
or dehumanizes any individual in the workplace, no matter whether
they are a temp employee or the CEO. Every individual deserves a
workplace environment where he or she can thrive.
The difficult issue, of course, is distinguishing between non-work
and work, because for so many of us, the two blend. We work from
our home computers, as well as on company provided equipment.
But perhaps the real issue is the personal responsibility we must
each accept: to treat our colleagues with respect and dignity. If
we do so, then it’s a non-issue whether the behavior is work-related
or private.
Marc Zimmerman
Partner
Phillips Nizer, LLP
 The
Zubulake case teaches us that office e-mails are not private. In
fact, they belong to the employer. The employer has the right to
look at all personal e-mails sent and received on office computers.
Moreover, the employer may be required to produce e-mails in response
to discovery demands in litigation. An employee should have no expectation
of privacy concerning her personal use of an employer’s computers
or phone lines. Some companies have a practice of monitoring personal
e-mails. There is no right to privacy of such emails. Employees
must recognize this. Moreover, employers are required to maintain
forensic copies or backup tapes of all electronic communications,
particularly in situations that may lead to litigation and may be
subject to sanctions as a result of destruction or spoliation of
such electronic evidence. For example, if an employer destroys e-mails
and they cannot be recovered, the jury may be instructed that it
can draw an adverse inference from the employer’s conduct.
As technology advances, so does an employer’s obligation to
stay on top of its policies to prevent misuse of its technology.
E-mail, the internet, camera phones and whatever comes next are
sure to provide courts with many interesting discovery and evidentiary
issues. Employers need to be aware that they are ultimately responsible
for their employees’ actions in the course of their employment,
and need to stay on top of electronic communication policies.
Jennifer Rubin
Mintz Levin
 It
is important for employees to understand that when they use their
employer’s computer system, they are giving up certain rights
to privacy. After all, the employer owns the system, not the employee.
Therefore, anything that an employee stores or records on an employer’s
computer system is, in fact, the property of the employer. Employees
should therefore not use an employer’s computer systems for
personal matters—unless the employee is willing to allow the
employer to read or review that information. Employers, on the other
hand, must abide by all laws governing the monitoring of electronic
communications in the workplace—and while there are federal
laws that govern interception and access to computer systems, certain
states require employers to give special notice before accessing—or
eavesdropping—on their employees.
Even though an employer “owns” all of its electronic
communications, employers should give their employees advance notice
that all of the information on the system is owned by the employer,
and the employee, by using the system, understands that nothing
stored on it is personal. So if an employee needs to communicate
some highly sensitive personal information, the employee should
not use an employer’s computer system to transmit or store
it. Employers should also consider implementing policies that give
employees clear direction on the proper use of the computer system.
A clear understanding on both sides as to what is and isn’t
private can help avoid conflicts over these sensitive issues.
Jane Casey
EVP and Treasurer
Blythe Inc.
 We
live in an increasingly electronic age that has created fundamental
change in our lives, some of it for the better (we’re always
connected) and some of it for the worse (we’re always connected!).
Clearly, it’s a double-edged sword, and whether we like it
or not, it’s here to stay. From a practical point of view,
I don’t see how today’s busy executive can expect to
remain competitive and on top of her game without capitalizing on
the opportunities afforded by the electronic age. But, she must
recognize the risks and adopt an appropriately defensive strategy
to protect against the misuse of information. As I sailed through
the E-Z Pass lane last week coming back from NYC, I recognized that
someone knew exactly where I was at that moment; at least it wasn’t
sitting at a standstill in the “Cash Only” lane. Electronic
banking has been a godsend, and if it’s not available for
sale on the Internet, I don’t need it. Nevertheless, I don’t
go blindly through my day, leaving needless reminders of who I am.
I check my bank balance online at least once a week to ensure not
only the absence of the unauthorized but also the presence of the
authorized. I use virtual credit card numbers for all my Internet
purchases. The question of what’s private in the workplace
is tricky not because your employer might spy on you—when
you’re at work, you’re at work and anything on your
computer or phone is not personal—but the practicality of
the electronic age is a blurring of the once distinct lines that
separated our personal from our professional lives. Let’s
face it; some personal matters need to be handled during traditional
business hours and every employer understands this. You can either
trust your employer not to abuse their access to you or try to maintain
separate lives. But, who wants to maintain two PDA’s? Not
me; so, I put my personal appointments on my Treo along with business
meetings. Personal phone numbers are comingled with business contacts.
I call that practical; but you still need to be vigilant. Use passwords—yes,
it’s a nuisance —but it will keep casual intrusions
to a minimum. And, if someone savvy enough wants deliberately to
invade your privacy, they’ll probably succeed. Don’t
let fear of what can go wrong stop you from benefiting from what
can go right!
 The
Fizz Home
|
