Employer's Electronic Communication Policy Negates Expectation of Privacy in Employee's Work Computer

by PretiFlaherty
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Adding its voice to the growing body of cases illustrating the importance of electronic communications policies, a federal court in Virginia ruled earlier this year that an employee had no reasonable expectation of privacy in personal files stored on his work computer where his employer maintained a policy that clearly informed him that he should have no such expectation.  Walsh v. Logothetis  (E.D. Va. Jan. 21, 2014).

The plaintiff in the case, Thomas Walsh, began working at Virginia Commonwealth University (VCU) in 2008 as a Chief Administrative Officer in the School of Medicine.  In the spring of 2011, Walsh’s supervisor, who was an Associate Dean in the School of Medicine, raised concerns about the financial management of Walsh’s department.  VCU conducted an audit as a result of the supervisor’s concerns.  In connection with the audit, VCU searched Walsh’s work computer and found copies of his personal 2007 and 2008 tax returns, which Walsh had stored on the computer.  The tax returns showed that Walsh had falsified his employment application to VCU by overstating the salary he had earned at his previous job.  The audit also showed that Walsh had failed to follow other financial procedures implemented by VCU.  Based on the results of the audit, VCU terminated Walsh’s employment.

Walsh later sued in federal court alleging a variety of constitutional and statutory violations.  Among his many claims, Walsh alleged that the search of his work computer was unlawful under the Fourth Amendment.  Specifically, Walsh alleged that several VCU policies permitted employees to store personal files on their work computers and that he therefore had a reasonable expectation of privacy with respect to the personal tax returns he had stored on his work computer.

The court acknowledged that public employees, such as Walsh, generally have a reasonable expectation of privacy in their workplace.  However, the court concluded that employees cannot have a legitimate expectation of privacy in electronic communications where a policy puts them on notice that their communications may be monitored.  VCU had such a policy, which provided:

No user shall have any expectation of privacy in any message, file, image or data created, sent, retrieved, received, or posted in the use of the Commonwealth’s equipment and/or access.  Agencies have a right to monitor any and all aspects of electronic communications and social media usage. Such monitoring may occur at any time, without notice, and without the user’s permission.


Consequently, even though Walsh may have been permitted by VCU to store personal information on his work computer, he did not have any reasonable expectation that this information would remain private.

The result in Walsh v. Logothetis is relevant for private employers, even though the case involved a public employee and a claim under the Fourth Amendment.  This is because common law claims for invasion of privacy, like privacy claims under the Fourth Amendment, generally require a plaintiff to show that he or she had a reasonable expectation of privacy.  A clear policy stating that such an expectation does not exist in electronic communications stored or accessed on a work computer is therefore equally important for employers in both the public and private sectors.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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