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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89303
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Probably a Federal Employment Law Question - Id be curious

Resolved Question:

Probably a Federal Employment Law Question -

I'd be curious to share your thoughts on the extent to which a former federal employee has a reasonable due process and 4th amendment cause of action for a mandamus or show cause proceeding.

That is, may a federal agency retain personal files and clearly marked electronic storage media?

And review same for undisclosed reasons, presumably to avoid breach of atty-client privilege and confidentiality?

How long can this review take without infringing on the former employees rights to personal property?

And is this course of action discriminatory or otherwise actionable if no internal procedures govern this type or action, against a single individual when no others are subjected to the same actions?

Thanks,
Submitted: 9 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Can you please clarify what you are asking here as it is fairly vague, especially since this is a former federal employee.
Customer: replied 9 months ago.

This strikes me as a federal employment law question with possible Constitutional overtones. The former employee in question is not covered by a Collective Bargaining Agreement and is looking for feedback on how to characterize the issue(s).


 


Apparently use of the office's computers in preceded by a notice that the user has no reasonable expectation of privacy. But the employee isn't saying his former employer can't review the files just wants them back. Apparently 6 months have passed with no end in sight.


 


Part of the basis for possibly challenging this is that it isn't a routine practice of the office, there don't appear to be any regs covering such a search, and is therefore perceived as discriminatory - age, veteran status, whatever.


 


So other than the possible Constitutional Law issues, what others possible causes of action does this raise in your mind.


 


Is that what you're looking for?


 

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

Please allow me to try to clarify. You are saying, in your very wordy and vague way, that the employer has personal files on the employer's computers belonging to the former employee and will not allow the former employer to recover those personal files? That is what all of those two lengthy posts above are about?
Customer: replied 9 months ago.

Yes.


 


Some files on the former employee's private LAN drive under a folder heading marked "Private," and the rest on CD/DVDs on a book case in the office. The latter are back up CDs of home files clearly marked as non-work related material.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

They are correct in that there is no expectation of privacy on an employer's computer or employer's computer network. Also, all files on an employer's computer or computer network belong to the owner of the computer or network, which means they do belong to the employer, even if they are personal files of the employee as the employee should not have placed them on the employer's computers. Under the Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer including all files on that computer I am afraid and this is the majority opinion of the courts. For example, in U.S. v. Hatfield, No. 06-CR-0550, 2009 U.S. Dist. LEXIS 106269, at *27 (E.D.N.Y. Nov. 13, 2009), the employer's "Computer Usage Policy" and ownership of the computer was the controlling factor of ownership of the files.

You have some argument that you are entitled to the return of your personal files on the computer as there have been some court rulings stating that when an employee puts personal information on a private part of an employer's computer that they do not lose ownership over those files and the courts in NJ (see for example:Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 655-56 (N.J. 2010)) at least have held that while the employer can review files they still have to return personal files to the employee, but this is a minority opinion right now and not the holding of most courts.



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Customer: replied 9 months ago.

Okay, I understand as far as the files on the LAN go, but I don't think he's so worried about privacy, just return of the files after they've been verified as non-work related.


 


Back up files from his home kept at work as off site back up and clearly labeled as such, wasn't addressed. The rule you spelled out would apply to those too if they were ever on pc, but weren't.


 


Big help though, thanks. I'll wait a little to give you a chance to address these comments then wrap it up. Appreciate you help.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

The fact is that the employee has no legal right to use the employer's computer for anything but work and when they do so the employer has the right to those files in most all cases according to the courts. Most employers will at least return the files to the employee once they verify they are not work related, but there are no laws mandating they do so and as I said above most courts side with the owner of the computer system on this issue as to who actually owns the files on that computer system.
Customer: replied 9 months ago.

Got it. There apparently is policy that let's employees use the system for personal purposes, within reason. Never seen it so don't know if it addresses this issue, but will see if he can get it for me.


 


Backup DVDs still unanswered, but the most important ones to him are on the LAN anyway.


 


Let's call it quits. Thanks for your thoughts.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

If there is such a policy, they cannot hold his personal property and must return it to him, including the back up DVDs. If they will not return it, then it is an issue of conversion and you would seek return of personal property under the common law tort of "replevin."
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89303
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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