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Employer has right to inspect hard drive of company-owned laptop computer, even though computer contained employee’s personal information as well.
An employer did not violate the privacy rights of terminated employee Tony Baghai when it examined the hard drive of his employer-owned laptop, a federal court recently held.
The employee left defendant’s employment to work for a competing company. Defendant was aware that the owner of the competing company (another former employee) was using information provided by Baghai to solicit other workers to come to the new company. Therefore, at the end of Baghai’s employment, it refused to let him purchase the laptop and instead had it searched for evidence that he was violating his noncompete agreement or revealing trade secrets. During a subsequent lawsuit regarding the theft of trade secrets, breach of contract and other issues, Baghai sued his former employer for invasion of privacy.
Baghai contended that he had a privacy interest in the computer, because he had saved personal information on it on the assumption that he would be able to purchase it. The court held that, regardless of the policy, there was no violation of the law. The elements for invasion of privacy are an intentional intrusion into a private place, in a manner highly offensive to a reasonable person. The court explained that even if the company found some of Baghai’s private information during its search, its manner of searching Baghai’s laptop was not highly offensive. Specifically: only a single employee at the company ever reviewed the material found, the company did not access Baghai’s private email account but only looked at messages actually saved on the computer’s hard drive, and its purpose in searching was to discover if trade secrets were being revealed or Baghai was engaging in other behavior that could have hurt the defendant. Further, at the time of the search, the computer was company property, so it had the right to retain the computer to protect its interests.
This case explains what an employer may and may not do when reviewing an employee’s work computer. Although employers may have a legal right to review company-owned computers and other equipment, their search must be reasonable and tailored toward finding work-related material. Any search that unnecessarily reviews truly private emails and other information could violate an employee’s privacy rights.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Hilderman v. Enea Teksci Inc., -- F.Supp.2d. -- , 2008 WL 686891, (S.D. Cal. March 12, 2008)]
Retaliation claim may be made by relative of individual who filed original EEOC complaint.
Title VII’s retaliation provision protects family members of the individual who originally engaged in protected activity, the Sixth Circuit Court of Appeals recently held. Therefore, an employee was able to maintain his claim that he was fired in retaliation for the charge of discrimination filed by his fiancée.
The plaintiff was fired three weeks after his fiancée filed a charge with the EEOC alleging her supervisor discriminated against her because of her gender. The company contended that the termination was solely for performance reasons and that, in any event, Title VII only allowed retaliation claims to be brought by the person who actually engaged in protected activity, not third parties, no matter what their relationship.
The court disagreed. It held that the purpose of Title VII’s retaliation provision is to protect the right of individuals to file complaints about discrimination without fear of reprisal from their employer. It was reasonable to think that an employee might be deterred from filing if she feared retaliation against a relative who worked for the same employer, as was the case here.
This case expands the notion of retaliation for employees in the Sixth Circuit. It is important to note, however, that courts in other parts of the country do not recognize third-party retaliation claims. Consult with a labor and employment attorney about the state of the law in your jurisdiction before making any employment decisions.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Thompson v. North American Stainless, L.P., -- F.3d --, 2008 WL 834005 (March 31, 2008)].
Failure to transfer employee to more desirable position can be seen as adverse employment action, even if new position involves the same rank and pay.
A female police detective could move forward with her claim of gender discrimination based on her contention that she was repeatedly denied a lateral transfer into a department with a better reputation and more opportunities for career advancement, even though the transfer would have been a lateral one.
The plaintiff had been working in one of the department’s crime labs for a number of years, but as the department outsourced more and more of her functions, the prestige of the position dropped. In response, the plaintiff applied for a lateral transfer to another lab on numerous occasions. Despite her qualifications, she was continually denied a transfer in favor of male applicants; once, her supervisor even told her that the department had to “take care of the boys” first.
The plaintiff eventually sued for gender discrimination, and the police department argued that she could not show she suffered an adverse employment action, because the transfer she sought had been to a lateral position with the same rank and salary as her present job. The court disagreed. It noted case precedent that found there can be an adverse employment action in a lateral transfer to a job with less prestige or room for advancement. By the same token, refusal to make a transfer to a job with a better reputation could also be adverse. Therefore, the plaintiff could go forward with her case.
This case provides a good explanation of the types of job decisions that may be seen as adverse, even if they do not involve a change in salary or title. It is well-established that adverse job actions can be found in a broad range of employment decisions, such as those involving the move to an objectively more desirable job, even if money is not a factor.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Beyer v. County of Nassau, -- F.3d --, 2008 WL 1808253 (2d Cir. April 23, 2008)].
Congress passes the Genetic Information Non-Discrimination Act (GINA).
On April 30, 2008, the Senate passed the Genetic Information Non-Discrimination Act (GINA), a piece of legislation that various legislators have been working to get passed for nearly 10 years. The House passed the same measure a week earlier, and President Bush signed the bill into law on May 21, 2008. GINA prohibits employers from discriminating against employees on the basis of genetic information by refusing to hire, discharging or making other employment decisions.
The law is a result of the recognition that modern medical science has made it easier for individuals to discover whether or not they are genetically predisposed to certain medical conditions. Employers might be tempted to discharge or refuse to hire an employee because of knowledge that person may later develop an illness or disability that would result in higher medical premiums for the employer, time off of work or the need for an accommodation.
As a result of this law, employees will not be dissuaded from undergoing needed and beneficial genetic testing by the fear that the results could put their jobs in jeopardy. The law applies to employment agencies and unions as well as employers. It also amends the Employee Retirement Income Security Act and the Public Service Health Act to prohibit discrimination by group health plans and companies that issue health insurance based on genetic information and to make it illegal for insurers to require genetic testing.
--Elaine S. Fox, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Daily Labor Report No. 80, April 25, 2008, pg. AA-1].