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Following an NLRB hearing in which “Jane Doe’s” personnel records were used to determine whether “Clinical Care Coordinators” qualified as “supervisors,” Doe sued the company for invasion of her privacy.  She claimed that a document from her confidential personnel record was improperly disseminated during the hearing in violation of her privacy rights.  A Pennsylvania trial judge allowed her claim to go to a jury that found in her favor.
 
But can releasing personnel files during a court proceeding really put a company at risk for invasion of privacy liability?  The answer is probably not, if handled carefully.  The appeals court in Jane Doe reversed the jury verdict and held that the use of the personnel files in the NLRB hearing was privileged.  The record made clear that the purpose of the disclosure was genuine and related to the NLRB proceeding.  The court focused on the fact that the lawyers, not the company’s management, selected which files to present, and that the information presented from the files was relevant to the issue in the hearing.     

This appellate ruling offers comfort, but perhaps not to the company that had to defend the case (unsuccessfully) to a jury before obtaining a reversal on appeal.  That the matter commanded this much process suggests great care in protecting the personal information of employees when companies are required to produce records in litigation or agency investigations.  For example, in Salt River Valley Water Users Association v. NLRB, 769 F.2d 639 (9th Cir. 1985), the court held it was not an abuse of discretion to limit the union’s access to only disciplinary actions and performance reviews. 

Recent amendments to the court rules require redaction of social security numbers, but the experience of the employer in Jane Doe suggests real care be taken in protecting any information not relevant to the case and that might create privacy issues for the employees whose records are produced.  It is also advisable to request from the court or agency requiring or admitting records an order that protects the affected employees’ interests.

In Convertino, the plaintiff, Assistant U. S. Attorney Richard Convertino, filed suit against his employer, the U. S. Department of Justice (“DOJ”), and against Eastern District of Michigan First Assistant U. S. Attorney Jonathan Tukel.  The complaint alleged that Convertino was retaliated against for certain testimony before Congress and that, in violation of the Privacy Act, the DOJ improperly leaked information regarding an investigation into Convertino’s potential prosecutorial misconduct.  The retaliation claim (the only claim alleged against Tukel) ultimately was dismissed for lack of subject matter jurisdiction; however, the parties conducted discovery related to the Privacy Act claim. 

Although the claim against Tukel was dismissed, a discovery dispute resulted in the Court’s review of 36 emails between Tukel and his personal counsel, sent and received using Tukel’s DOJ email account, to determine whether they were protected by the attorney-client privilege.  Tukel intervened in the discovery dispute to assert privilege over the email communications.  Plaintiff Convertino took the position that Tukel waived his right to assert the attorney-client privilege because the communications were made using the DOJ’s email account. 

Judge Lamberth upheld the privilege.  In so doing, he articulated that application of the privilege requires a case by case analysis to determine whether there is a subjective expectation of confidentiality that is objectively reasonable, based on the following:  (1) whether the employer maintains a policy banning personal or other objectionable use; (2) whether the employer monitors the use of the employee’s computer or email; (3) whether third parties have a right of access to the computer or email; and (4) whether the employer notified the employee, or whether the employee was aware, of the employer’s use and monitoring policies.  The Court found that Tukel’s expectation of privacy was reasonable because, according to the opinion, the DOJ does not ban personal use of its email system, Tukel attempted to delete the email, and Tukel was unaware the DOJ “would be regularly accessing and saving e-mails sent from his account.” 

This opinion highlights why employers should develop, maintain, disseminate, and periodically update clear policies regarding acceptable practices for company information technology.  Such policies should include, among other things, guidelines governing personal and prohibited uses and statements related to privacy and confidentiality.  Taking such steps can reduce any arguable expectation of privacy and prevent employees from shielding their personal use of company resources from discovery in litigation against the company.

“Texting”--the preferred communication medium among younger employees--differs from other forms of communication in ways making it easier to cross the line into inappropriate content.  Texts are brief, spontaneous, and informal -- even more so than e-mail.  A text can contain only a limited number of characters, so it is customary to abbreviate (“LOL”; “TLK2UL8R”) and to omit even the minimal greetings and pleasantries usually contained in email messages.  With it’s rapid back-and-forth, texting feels more like a telephone conversation than written correspondence.  But unlike a telephone call, a written record of text communications remains and can serve as powerful evidence in sexual harassment lawsuits -- generating the buzzword “textual harassment.” 

 Use of text messages as evidence in discrimination claims is on the rise.  According to a recent article in the National Law Journal:

Perhaps the biggest culprits...are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits, and pretty tough to dispute.
--“Textual Harassment” on the Rise, The National Law Journal, July 20, 2009

Inappropriate text messages were key evidence in several recent, high profile employment cases, including a claim by four waitresses against a manager at a Famous Dave’s restaurant in West Virginia.  In support of their claim, the waitresses produced text messages from the supervisor requesting sexual favors.  Text messages appear similarly pivotal in a pending Connecticut harassment case against World Wrestling Entertainment, Inc.  The plaintiff-employee in that case claims that a high-level manager made sexual advances to her in late-night text messages.  

Given this exposure, employers’ anti-harassment policies should treat text messages sent on devices owned and provided by the employer as business records that should be monitored for inappropriate content and managed accordingly.  But the sheer volume of text messages can make monitoring impractical.  In a one-month period (January 2009), for example, AT&T processed 31.1 billion text messages.  (Statement of Wayne Watts, Senior Executive Vice President & General Counsel, AT&T, Inc., Before Subcommittee on Antitrust, Competition Policy & Consumer Rights, Hearing on Cell Phone Text Messaging Rate Increases and the State of Competition in the Wireless Market, June 16, 2009).  Monitoring such a vast number of exchanges could prove impossible even for the most diligent employer.  And if the Ninth Circuit’s opinion in Quon is affirmed, such monitoring may violate the privacy rights of public employees--imposing on employers (at least those in the public sector) the conflicting duties of electronic monitoring to deter harassment without infringing employees’ expectation of privacy in text messages.