Companies are increasingly using sophisticated forensic tools to review employee computer use. These searches can reveal violations of company policies relating to computer use, confidential information disclosure, or harassment and discrimination. In an unpublished opinion issued earlier this month, the Eleventh Circuit Court of Appeals (which includes Georgia) cautioned employers about using such forensic tools without clearly establishing business reasons for conducting the searches.

In Smith v. City of Pelham, an administrative assistant filed an internal complaint alleging that the chief of police discriminated against her on the basis of sex after denying certain use of compensatory time. After learning of the complaint, the chief ordered a review of the plaintiff’s computer usage, which discovered nude photographs (inadvertently downloaded as backup from her iPhone), as well as evidence that she was doing business on a second job during working time for the city. The chief terminated the plaintiff based on these discoveries, and she sued, claiming retaliation for filing the earlier internal complaint.

The district court dismissed the retaliation complaint on the basis that the plaintiff did not know that the forensic review had been conducted and, therefore, that it did not rise to the level of a materially adverse employment action. On appeal, the Eleventh Circuit reversed this dismissal, remanding the claim for trial. In its opinion, the court noted that an employee does not need to be aware of a retaliatory step for it to be actionable. In this case, the employee would not have been fired if the forensic review had not been conducted. The termination certainly would have dissuaded a reasonable employee from filing a complaint in the first place.

The Eleventh Circuit also noted that the chief could not explain business reasons unrelated to retaliation for conducting the computer review in the first place. He ignored directions from the city’s human resources department not to engage in such actions and failed to follow the city’s progressive discipline policy. This created a material issue of fact for a jury to decide on his actual motives.

While new forensic tools may provide a tempting way to “catch” an employee suspected of engaging in misconduct, any search needs to be preceded by a careful analysis of the basis for such suspicion and clear business reasons for conducting the review. Both legal and human resources professionals should be involved in making the decisions to conduct such reviews.

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