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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34409
Experience:  Retired (mostly)
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If an employer set up access capabilities to see employees

Resolved Question:

If an employer set up access capabilities to see employees desk tops to monitor what they are working on, and to search hard drives, (all without the employee knowing) does that access capability need to be disclosed to the employees?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Fran-mod replied 2 years ago.
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Customer: replied 2 years ago.
I would like an answer, but there are no resources to get an answer, I would like to know that.
Expert:  Fran-mod replied 2 years ago.
Thank you for your continued patience. We will continue the search for a professional for you.
Expert:  socrateaser replied 2 years ago.
The California constitution contains an express right of privacy (Art. 1, Sec. 1). Consequently, there is always a risk that an individual can assert that circumstances are such that the person has a reasonable expectation of privacy in his or her actions. The case law is extremely uncertain. The risk arises where the employer provides a computer and does not expressly notify employees that all computer use must be for business purposes only.

The situation becomes extremely uncertain where an employer provides a notebook or other mobile device, requires that the employee use the computer outside of the office, provides general internet access, etc. The combination of circumstances, creates a paradox: the employer requires that the employee treat the computer as if it were his or her personal property during employment and simultaneously instructs the employee not to do so.

There is no case law that definitively provides whether or not the employee has a reasonable expectation of privacy, when conducting personal activities on such a computer -- especially in his or her private residence. The constitutional right to privacy is at its zenith in a person's home, so if there were to be a claim against an employer, this is the place where it would be the most likely.

At least one out-of-state authority has held that an employee can reasonably expect that e-mail communications with his or her lawyer through the employee's personal, web-based account will remain private, confidential and protected by the attorney-client privilege even though transmitted by way of the employer's laptop computer ... so long as the employer's policy against accessing its electronic computer system for personal use does not clearly state that e-mailing through a personal, web-based account will be subject to employer monitoring. Stengart v. Loving Care Agency, Inc. (N.J. Supreme Court 2010) 201 NJ 300, 308, 321–323, 990 A2d 650, 655, 663–664.

BotXXXXX XXXXXne, express notice to an employee is vital to protecting the employer's authority to monitor an employee's activities. But, each case must be considered under the totality of the circumstances.

Hope this helps.

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Customer: replied 2 years ago.
The employee is at a work place. Her computer is at her desk there. Her supervisor is monitoring her desktop, but the employee was never told monitoring was happening.
Expert:  socrateaser replied 2 years ago.

There may be a claim against the employer for invasion of privacy. For an employment rights attorney referral, see this link. This is not a claim that can be referred to the Cal. Division of Labor Standards Enforcement or U.S. Department of Labor. It is a private lawsuit between the employee and employer -- and because of the uncertainty of the case law, each case is a bit of a "crap shoot."

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Lawyer
Satisfied Customers: 34409
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

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