Litigation Value: Unknown
Last night’s episode of The Office gave the characters their first glimpse into their upcoming documentary. Surprisingly, this seems to be the first time any of them contemplated that the world (literally) will be able to see their personal and professional antics that have entertained all of us for the past 10 years (well, mildly entertained us for the past three or four).
Pam sums up her beliefs when she asks, “so, we haven’t had privacy in 10 years?” Putting aside the issue of whether they all consented to the documentary producers in the first place (and what that consent included), privacy in the workplace is a hot-button issue given the widespread use of technology in the workplace. Although there are no broad federal workplace privacy statutes, the common law and various state statutes affect how employers should monitor their employees.
To avoid common law claims (i.e., tortious invasion of privacy), employers should widely disseminate how they are monitoring their employees (video, e-mail, phone, etc) to ensure that employees do not have an objectively reasonable expectation of privacy. See, e.g., Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F2d 187, 201 (2d Cir 1984) (employees warned of potential search lessened employee’s privacy expectations). The individual states also have statutes that require compliance. Some of those statutes are more commonsensical than others. Compare California Labor Code § 435(a) (“No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes unless authorized by court order.”), with Delaware Code § 705(b) (“No employer . . . shall monitor or otherwise intercept any telephone conversation or transmission, electronic mail or transmission, or Internet access or usage . . . unless the employer (1) provides an electronic notice of such monitoring . . . at least once during each day the employee accesses the employer provided E-mail or Internet access services; or (2) has first given a one-time notice . . . acknowledged by the employee[.]”).
Finally, and most obviously – Phyllis’ reaction to listening to “50 Shades of Gray,” – albeit funny, theoretically could constitute actionable harassment. Toby incorrectly suggested that she needed to touch herself for this to be actionable. Her actions generally must only be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). This is a pretty “high threshold” and “the sporadic use of abusive language, gender-related jokes, and occasional teasing” is not actionable generally. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The conduct must also be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Id. at 787. Although isolated incidents can be actionable, the characters here would have to show that they were subjectively offended, which I’m not sure is possible given everything we’ve seen over the last 10 years!