Q: Is it legal for my employer to read emails I send on my work computer?
A: Generally, yes. If your employer has a policy (check the handbook) stating that emails may be monitored and that employees should have no expectation of privacy in their email communications, then you should expect that any email you send or receive on your work computer can and will be read by the employer or by a designated representative.
In the absence of such a policy, there are fewer clear answers, but the law generally favors the right of employers to control and inspect their employees' computer activity, with certain narrow exceptions prohibiting the interception of private electronic communications. The bottom line is that under current law, employees can rarely be assured of privacy on work computers, and employers will generally be held to violate employees' privacy only when they engage in particularly outrageous conduct (such as stealing an employee's personal email password or hacking into his or her Facebook account).
Q: Is it legal for my employer to search my office, desk or locker?
A: If you work for a public employer, your employer is not allowed to subject you to “unreasonable searches and seizures” under the U.S. Constitution. The key to whether it is legal for a public (government) employer to search your office, desk or locker is whether you had an expectation of privacy. This answer may differ depending on the circumstances and the job you hold.
If you are employed by a private company, it is generally legal for your employer to search your office, desk or locker. Again, notice is the key. If your employer has made you and your fellow employees aware that desks, offices, and lockers are the employer’s property and that they may be searched, you do not have a reasonable expectation of privacy and should expect that your office, desk or locker may be searched by your employer. Some workplace policies go so far as to state that, if an employee brings personal property (purses, briefcases, lunch containers, etc.) onto the work premises, such property can be searched. Agreement to an employer’s policies is usually a condition of being offered a job or of continuing employment.
Q: Can my employer dictate what I can post on my Facebook page?
A: Yes and no. The National Labor Relations Board (NLRB) recently issued a report regarding employer policies and disciplinary actions related to postings on social media sites. The NLRB enforces the National Labor Relations Act (NLRA), which governs union and non-union workplaces. Certain provisions of the NLRA protect employees who engage in “concerted activity” regarding workplace conditions. This means that you and your fellow employees are free, for example, to talk about office policies, and your employer cannot try to prevent you from doing so or take disciplinary action against you and your fellow employees for such a discussion.
The NLRB report also says it will initiate action against employers who prohibit employees from talking about working conditions (supervisors, salaries, hours, etc.) online. Because the NLRB enforces the NLRA, you are generally permitted to talk about your working conditions on your Facebook page without worrying that your employer will take any action against you for doing so. However, you should be aware that this same NLRB report stresses that employers may enforce policies prohibiting employees from violating laws relating to the employer’s business. For example, a bank can prohibit employees from discussing customer accounts, and a drug company can prohibit discussion of individual patient prescriptions. An employer can also enforce a policy that prohibits employees from coercing or pressuring co-workers to connect via social media, or a policy that prohibits employees from making vulgar, obscene, threatening, intimidating or harassing comments that violate the employer’s policies against illegal discrimination and harassment.
Q: Can an employer exclude a job applicant from consideration based on a prior criminal arrest or conviction record?
A: The Equal Employment Opportunity Commission frowns on using criminal background checks to determine employment eligibility unless the background information is job-related and consistent with business necessity. This is because many criminal background checks would disproportionately impact individuals based on their race, sex, national origin or other protected classification. The EEOC suggests that employers determine, before listing a job, whether any particular crime would act as a deterrent to hiring for the job, and then individually assess an applicant’s situation, considering such factors as the seriousness of the offense and the length of time since conviction, before excluding anyone. That said, it is not automatically illegal for an employer to use a job applicant's criminal record as a factor in hiring, and an applicant fighting such a policy would still need to prove that the policy discriminates against him or her based on a protected category, such as race or sex.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by attorney Maryellen Reash, of Reash Law Offices in Columbus, and updated by attorney Jeff Vardaro of the Gittes Law Group in Columbus.