MASLA ANNUAL CONFERENCE LAKE PLACID, NY JULY 21, Investigations in the Academic Environment

Transcription

1 MASLA ANNUAL CONFERENCE LAKE PLACID, NY JULY 21, 2014 Investigations in the Academic Environment Presentation by Ronald A. Longo Keane & Beane, P.C. I. Workplace Surveillance of Public Employees A. Conducting surveillance of public employees has been utilized as a tool by public employers for the purpose of unearthing evidence of suspected misconduct. B. Public employers have utilized various types of surveillance methods for this purpose, such as: 1. Hiring an investigator, who along with his/her personal observations, may take pictures and record video; 2. Using technology to track employees movements; and/or 3. The use of surveillance/security cameras in the workplace. 4. Review of computer files II. Investigatory Procedures are Non-Mandatory Subjects of Bargaining A. Investigatory procedures are generally non-mandatory subjects of bargaining. B. The Public Employment Relations Board (PERB) has stated that to hold otherwise would prevent an employer from making internal preliminary inquiry into the conduct of a unit employee by compelling the [Employer] to advise the unit employee of the nature of the investigation and of the fact that a complaint had been made against him. This would tend to discourage the filing of justifiable complaints and otherwise frustrate investigations that are normally an essential aspect of government managerial

2 prerogative which overrides the duty to negotiate. See City of Rochester, 12 PERB 3010 (1979). III. Surveillance Conducted by Private Investigators A. PERB held in Elmont Union Free School District, 28 PERB 4693 (1995) that a school district s decision to institute surveillance of a bus driver that was conducted by a private investigator using videotape was not a mandatory subject of negotiations. B. Elmont Union Free School District, 28 PERB 4693 (1995) (ALJ Decision) 1. In Elmont, the school district hired a private investigator to follow a bus driver and videotape her while she completed her bus route. The surveillance occurred on two separate days. The investigation was conducted after several parents had complained that the bus driver was driving in an unsafe manner. The investigation confirmed the previous parental complaints. The bus driver was caught on tape speeding, rolling through stop signs, riding the curb on turns and driving while students who were not seated. The bus driver was charged with the infractions that were recorded by the private investigator with the tape used as evidence. 2. The ALJ held that the videotape surveillance was investigatory and preliminary to the disciplinary proceedings subsequently commenced against the bus driver. As such, relying on prior PERB precedent holding that investigatory procedures in disciplinary matters are not mandatorily negotiable, the ALJ held that the school district was not obligated to negotiate its decision to videotape the bus driver and dismissed the case. The ALJ further stated that to find otherwise would interfere with an employer s ability to inquire into employee conduct and would frustrate investigatory activity, which is an essential aspect of managerial prerogative and which overrides the duty to negotiate. IV. Use of Security Cameras A. Public employers often install security cameras for safety reasons as well as to protect public property. B. In addition to being used to ensure the safety of people and property, security cameras can be used to monitor the actions and movements (or lack thereof) of employees and provide evidence of acts of misconduct and/or incompetence. C. Based upon early PERB decisions, there was reason to believe that using security cameras in public work areas to uncover evidence of employee misconduct -2-

3 fell under management s prerogative to conduct investigations and, therefore, a nonmandatory subject of negotiations. This was because: 1. The recordings created by the security cameras did not require the active participation of the employees being recorded; 2. The security cameras were merely recording what members of management could personally observe if they were standing in the area of the cameras; 3. The security cameras would only be recording employees while they were on employer property during working hours; 4. Pursuant to a public employer s accountability for public funds, it has a duty to supervise employees and investigate possible misconduct, in addition to their duty to safeguard property and the public. See City of Syracuse, 14 PERB 4645 (1981); and 5. The fact that the use of security cameras could have a disciplinary component did not, itself, create a bargaining obligation. County of Nassau, 41 PERB 4552 (2008). D. Decisions by PERB have limited a public employer s ability to use evidence obtained from security cameras in employee disciplinary proceedings. 1. In Nanuet Union Free School District, 45 PERB 3007 (2012) (Board Decision), a school district installed security cameras throughout the district for the purpose of security and safety. The union was also informed that should the cameras record evidence of employee misconduct, such recordings would be used as evidence in any subsequent disciplinary proceedings. Shortly after the cameras were installed, the union was informed that a camera would be installed in one of its schools specifically to monitor the work performance of a custodian, whom the school district suspected was not completing his duties. The school district hired a private investigator who set up a hidden camera to record activities (or lack thereof) in a public hallway outside of the custodial break room in the custodian s assigned school for a period of six months. 2. PERB dismissed the union s improper practice charge as untimely and, therefore, did not determine whether the school district s actions constituted an improper practice. However, PERB found that in general, the decision by an employer to engage in videotape surveillance of a workplace for monitoring and investigating employees is mandatorily negotiable under the Act because it bears a direct and significant relationship to working conditions, it requires -3-

4 employees to be video-surveillance participants, and it intrudes upon employee interests including job security, privacy and personal reputation. 3. Notwithstanding its finding that videotape surveillance is generally mandatorily negotiable, PERB held that each case requires a fact specific examination of employer and employee interests. For example, video surveillance might be a non-mandatory subject in a correctional facility, where videotaping is integral to the employer s core mission (supervision of inmates). However, in workplaces where video surveillance is not integral to the employer s mission, a balancing of interests must occur to determine if the videotaping significantly or unnecessarily intrudes upon the protected interests of unit employees: Factors to be consider include: a) Scope of videotaping; b) Length of videotaping; and c) Availability of the images to third parties. E. Town of Clarkstown, 44 PERB 4625 (2011) (ALJ Decision) 1. In Clarkstown, the Town installed video cameras in and around its Highway Department buildings. The Town informed the union that if any employee was viewed on camera involved in improper activity, the video footage would be used as evidence in a disciplinary proceeding. The union did not oppose the installation of video cameras outside of the Highway Department buildings, but did object to the use of video cameras to observe unit members performing their job duties inside the Highway buildings. 2. The Administrative Law Judge (ALJ) held that the use of video obtained from surveillance cameras in disciplinary proceedings constituted a new work rule which required the balancing of interests to determine whether it was a mandatory subject of negotiations. Specifically, the interest of the employer to manage its affairs and the interest of the employees to negotiate their terms and conditions of employment. The ALJ found that the employees interests in job security outweighed the Town s interest in protecting its assets. Relying heavily on decisions of the National Labor Relations Board (NLRB), the ALJ found that the use of video cameras to monitor employee performance and behavior implicated employee job security and was little more than an enhanced investigatory tool to ascertain employee misconduct and, therefore, a mandatory subject of negotiations. F. The Use of Security Cameras After Nanuet and Clarkstown 1. In light of Nanuet and Clarkstown, the decision to install security cameras and to utilize evidence obtained from such cameras to discipline -4-

5 employees will usually be deemed to be a mandatory subject of negotiations. This includes, but is not limited to, the following uses: a) Using security cameras to determine that misconduct took place; b) Using video recordings as evidence in hearings after disciplinary proceedings have been initiated. 2. However, there is no hard and fast rule regarding whether the use of video surveillance in the workplace is mandatory subject of negotiations. As stated in Nanuet, it is a fact specific inquiry which must be examined on a case by case basis. 3. Balancing Employer vs. Employee interests a) Employer interests (1) Protection of people and/or property (2) Supervision of employees b) Employees interests (1) Privacy/Personal reputation (2) Job security (3) Right to bargain terms and conditions of employment c) Factors to consider in balancing interests (1) Nature of the workplace (2) Core mission of the employer (3) Scope and duration of surveillance (4) Accessibility by third parties 4. While the use of surveillance cameras for the purpose of monitoring employees will generally be held to be a mandatory subject of negotiations, it is unlikely that a union would be able to bar an employer from installing security cameras, provided recordings will not be used as the basis to commence disciplinary action and/or will not be used as evidence in any disciplinary proceedings It should also be noted that the Nanuet and Clarkstown cases dealt with situations where security cameras were being newly installed on employer property. As such, they may be distinguishable from cases involving existing cameras. Should a union challenge the use of existing cameras in employee 1 As evaluation procedures are mandatory subjects of negotiations, an employer would also be required to negotiate the use of information captured on the cameras to evaluate employees. -5-

6 discipline, public employers should consider available defenses of waiver and/or untimeliness. a) Waiver- In order to waive rights granted under the Taylor Law, a union must demonstrate an intentional relinquishment of a known right with both the knowledge of its existence and an intention to relinquish it. Werking v. Amity Estates, 2 N.Y.2d 43, 52, 155 N.Y.S.2d 633, 642 (1956); County of Erie, 14 A.D. 3d 14, 785 N.Y.S. 2d 130 (3d Dep t 2004). The evidence of waiver must be clear, unmistakable and without ambiguity. Matter of Civil Service Employees Association. v. Newman, 88 A.D.2d 685, 450 N.Y.S.2d 901, 903 (3d Dep t 1982). b) Untimeliness- Pursuant to Section 204.1(a)(1) of the Taylor Law, a claim that an employer has violated its bargaining obligation must be brought within four (4) months of the date of the violation. G. Privacy Considerations 1. Under New York State Labor Law Section 203-C, [n]o employer may cause a video recording to be made of an employee in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorizes by court order. However, there is an exception for law enforcement personnel engaged in the conduct of his/her authorized duties. V. Reconciling Elmont with Nanuet and Clarkstown A. Certain aspects of Nanuet and Clarkstown appear to be at odds with the decision in Elmont. Specifically, whether the decision to videotape employees during the course of an investigation into employee misconduct is a mandatory subject of negotiations. B. In holding that the use of video surveillance in the workplace is a mandatory subject of negotiations, PERB placed great emphasis on the fact that the video surveillance in those cases was extremely broad in scope and duration. Specifically, the Board and the ALJ noted that the recordings in those cases: 1. Were constant; 2. Continued for extended periods of time; 3. Recorded all employees in view of the camera, whether suspected of misconduct or not; 4. Recorded video from several angles; and 5. Contemporaneously recorded all details of anything in view of the cameras. -6-

7 C. In Elmont, the video surveillance occurred over two days and was specific to an employee on her bus route for the purpose of investigating allegations of driving infractions. As such, it could be argued that the video surveillance in Elmont was merely recording what the private investigator was personally observing. D. The ALJ in Clarkstown stated that the above argument was specious with respect to the security cameras, finding that it was simply not valid to equate the ability of private investigators or supervisors to observe employees to that of a network of security cameras. E. The Board in Nanuet also cited the scope and duration of the video surveillance in distinguishing Elmont. This is true for both the security cameras as well as the hidden camera that was installed in Nanuet. This is especially notable with regard to the hidden camera because, at first glance, its use in Nanuet appears to be similar to the videotape surveillance conducted in Elmont. In both cases the surveillance was conducted by a private investigator, was initiated based upon suspicions of misconduct, and was part of an investigation that was preliminary to disciplinary action. VI. GPS Surveillance A. In addition to security cameras, GPS technology can be used to monitor an employer s property as well as its employees. Data obtained from GPS technology can provide a wealth of information as to an employee s whereabouts during the workday. Moreover, vehicles equipped with GPS can also provide data regarding the speed at which the vehicle is travelling. Therefore, the use of GPS technology clearly has implications with respect to employee discipline. B. PERB has held that the installation and use of GPS technology in employer equipment is not a mandatory subject of negotiations. County of Nassau GPS cases- 41 PERB 4552 (2008); 41 PERB 4553 (2008); 41 PERB 4554 (2008) (ALJ Decisions) 1. The CSEA brought a series of improper practice charges against the County of Nassau in response to the County s decision to install GPS technology in vehicles operated by public works department employees, as well as its decision to issue new cellular phones equipped with active GPS programs. The GPS was used to track the location of employees and/or County vehicles during work time. The County informed the CSEA that it reserved the right to discipline any employees based upon information obtained from the GPS programs. -7-

8 2. PERB held that the County had no obligation to negotiate the installation or use of the GPS programs. The ALJ based his decision of the following a) PERB precedent holding that the selection of equipment involves the manner and means by which [an employer] serves its constituency and hence is a management prerogative. City of New Rochelle, 10 PERB 3042 (1977). b) PERB precedent holding that a demand requiring prior consultation with employees before an employer makes modifications to facilities such as remodeling or building, or purchasing major equipment is non-mandatory. Chateaugay Cent. Sch. Dist., 12 PERB 3015 (1979). c) PERB precedent recognizing the right of an employer to control the use of its own property. Charlotte Valley Cent. Sch. Dist., 18 PERB 3010 (1985). d) The ALJ held that the utilization of the GPS technology related to the manner and means by which it provided services to the public and, therefore, there was no bargaining obligation concerning the decision to use it. e) The ALJ rejected the CSEA s argument that employee privacy rights mandated negotiations. The ALJ held that no privacy rights were implicated because the GPS only tracked employees during work time (the employees were permitted to leave their vehicles and/or turn off their cell phones during breaks) f) The ALJ also rejected the CSEA s argument that the employees were being co-opted into compiling surveillance information upon themselves, citing PERB precedent holding that where there is no increase in participation, there is no obligation to bargain. See County of Monroe and Sheriff of the County of Monroe, 20 PERB 4598 (1987) 3. Lastly, the ALJ rejected the CSEA s argument that since the use of the GPS technology implicates discipline, it was a mandatory subject of negotiations, holding that the fact that a work rule may have a disciplinary component does not create a bargaining obligation. VII. Employee Privacy and Searches -8-

9 A. Individuals have a constitutional right to be secure from unreasonable searches and seizures by the government under the Fourth Amendment. B. Searches of employees, their workspaces and their district issued property can be a complicated issue. In order for such searches to be deemed permissible, the employee must not have a reasonable expectation of privacy in the area or item searched or the search must be reasonable. See O Connor v. Ortega, 480 U.S. 709 (1987). 1. A reasonable expectation of privacy is a subjective expectation of privacy that society accepts as objectively reasonable. C. Employees are almost always held to have a reasonable expectation of privacy in their person or personal belongings (purse, briefcase, etc.). As such, a search of those items without the employee s consent must be reasonable under the circumstances. See People v. Postall, 153 Misc.2d 167, 580 N.Y.S.2d 975 (Kings County, Sup. Ct. 1992). D. Video surveillance can constitute also a search under the Fourth Amendment. However, in order for an individual to show that video surveillance constitutes a search in violation of his/her right to privacy, the individual must show that he/she had a reasonable expectation of privacy in the location that was videotaped and that such expectation was reasonable. See United States v. Gonzales, 328 F.3d 543 (9 th Cir. 2003); Brannen v. Board of Educ., Kings Local Sch. Dist., 761 N.E.2d 84 (Ohio App. Ct. 2001). For example, it would not be reasonable to have an expectation of privacy in a parking lot, whereas it would be reasonable to have an expectation of privacy in a bathroom. 1. A major factor in determining whether a person has a reasonable expectation of privacy in a location is whether the person maintains exclusive use and control over the location, such as a personal office or bathroom. E. In order to determine whether an employee has a reasonable expectation of privacy, your district policies should be consulted. 1. For example, most school districts have a computer/acceptable use policy which states that any and all files on a school district computer are not private, may be monitored or searched, are considered school district property, and that there is no expectation of privacy in any files found on the computer. See People v. Kent, 79 A.D.3d 52, 910, N.Y.S.2d 78 (2d Dep t 2010) (holding that a determination whether an employee has a reasonable expectation of privacy in an office computer depends of the employer s policy on computer use and any other practices, procedures and regulations). 2. Likewise, many school districts have policies providing for same regarding its systems. See Scott v. Beth Israel Med. Ctr., Inc., 17 Misc.3d 934, -9-

10 847 N.Y.S.2d 436 (New York County Sup. Ct. 2007) (holding that a physician s communications with his attorney using the employer hospital s server were not confidential for the purposes of attorneyclient privilege). 3. If an employee has no reasonable expectation of privacy, the search will be deemed permissible, without regard to the reasonableness of the search. F. Even if an employee has a reasonable expectation of privacy, the search will nonetheless be permissible so long as it is reasonable. Searches must be reasonable in both inception and scope. As such, to determine whether a search is reasonable, the reason/justification for the search and the extent of the search is examined. See City of Ontario, Cal. v. Quon, 130 S. Ct (2010); O Connor v. Ortega, 480 U.S. 709 (1987). 1. A search of an employee s desk or office because of a credible allegation that he/she has a weapon or illegal drugs therein would be reasonable in both inception and scope. 2. However, it would likely be held unreasonable to search an employee s desk or office because he/she is alleged to be a sick leave abuser. Here, the search would be unreasonable in inception and scope. G. Use of a GPS device when attached to an employee s personal vehicle by a public employer does not necessarily require a warrant. However, the search must be reasonable in its scope and not excessively intrusive or the evidence obtained may be suppressed. See Matter of Cunningham v. NYS Dept. of Labor, 21 NY3d 515 (2013). H. Acceptable Use Policy (AUP) 1. Have an AUP. If your district has no policy for staff one is provided in the materials for your use. 2. REVIEW ONCE A YEAR to ensure it captures all technology made available in the District and to ensure it has kept pace with the ever evolving challenges posed by technology and the legal responses to those challenges. 3. Have separate AUPs for STAFF vs. STUDENTS a) Critical provisions not significantly different b) Technology available may vary c) Tone/Tenor & Emphasis may vary 4. The primary purpose of an AUP is to put Staff on NOTICE -10-

11 a) The use of technology is a PRIVILEGE NOT A RIGHT: As part of abrogating any expectation of privacy declare ownership of everything; b) Acceptable uses c) Prohibited uses d) NO EXPECTATION OF PRIVACY in any communication, data or other work or activities conducted using the District s technology. e) Confirm PENALTY for violations 5. Developing an AUP: a) Define technology as broadly as possible o hardware, software, operating systems, storage media, network accounts, internet access devices, wireless communication devices and o Be sure to capture: computers, computer networks, software, hardware, cell phones, smart phones, laptops, o Follow broad definition with concrete examples includes but is not limited to specify technology made available to ees b) Identify technology available to its employees and students o support educational mission, facilitate operations and administrative functions c) Assert ownership at all times d) Reserve the right to and access, view, and monitor information e) Define who is covered by the policy officials, employees, contractors, consultants, temporary employees & anyone else who uses or accesses technology at District s offices, facilities, schools f) Proper Uses/Affirmative obligations o Password security the employee is responsible for all usage associate with account so log off when not using it (teachers in classroom...) o Comply with all laws intellectual property rights ; copyright o Establish an obligation to inform the District if the employee believes technology is infected with virus; technology nonresponsive of performance problems o Require exercise of good judgment may not be enforceable but gives the employer o an argument for any contingency that is not otherwise covered by the policy can never cover every possible contingency -11-

12 g) List prohibited uses o Bullying, harassing, hacking or otherwise damaging District s or others technology o Pornographic, obscene, offensive, sexually explicit o Dangerous to integrity of system o Political Lobbying, commercial activity or private business o Don t use another s account, misrepresent self, impersonate others, send anonymous messages/files o Don t reveal personally identifiable info of self, students or others o Don t install or modify software including free downloads/uploads o Don t copy district software o Don t download/install files protected by copyright movies, music, games o Don t disable virus software o Don t circumvent security, screening or blocking software o Prohibit access to social networking sites, chat rooms, etc. Should consider discouraging superiors from friending/referring/recommending subordinates Should consider discouraging employees (esp. teachers and administrators) from friending students h) Specifically address /internet o No personal communications o Treat messages same as other forms of written communications o Attachments must be business related and safe o No solicitation o Specify communications for which should NOT be used o Specify deletion procedures o Specify reply conventions o No threatening, harassing, discriminatory, racist, sexist, or defamatory messages o -12-

13 i) DISCLAIMER o Not warranting quality, availability, accuracy or viability of technology o No damages for loss of data, service interruptions, o Despite filtering, cannot guarantee won t access upsetting or offensive info/pictures j) SANCTIONS - revoke privileges, discipline, deactivate account, delete/remove/modify materials that infringe copyright or are otherwise illegal/inappropriate or violate AUP k) ACKNOWLEDGEMENT - distribute and get signed policy from every staff member; if by , need to prove read/opened ; VIII. Wiretapping Laws A. Where video cameras also record audio, federal and state wiretapping laws may be implicated, which prohibit the recording of private conversations. Factors in determining whether a conversation is private, meaning that the parties to the conversation have a reasonable expectation of privacy in the conversation, are: 1. Volume of the conversation 2. Proximity of others to the conversation or the potential for others to hear the conversation 3. Potential for the conversation to be reported 4. Actions taken by the speakers to keep the conversation private 5. The need to use technology to hear the conversation 6. The place/location of the conversation. See Kee v. City of Rowlett, 247 F.3d 205 (5 th Cir. 2001). B. Under the Federal and New York State wiretapping laws an individual may record a conversation (regardless of whether it is deemed private) to which he/she is a party, regardless of whether the other participants consent to such recording. This is referred to as the one party consent rule. Some states, such as Connecticut, require all parties to the conversation to consent ( two party consent rule). IX. Surveillance and Student Privacy A. Video Recordings of Students -13-

14 1. School districts must be cognizant of student privacy concerns that are implicated under the Family Educational Rights and Privacy Act (FERPA) when utilizing information and/or images captured through security cameras or obtained through other types of surveillance. 2. Video recordings from security cameras that include images of students may be considered educational records under FERPA. a) The Family Policy Compliance Office of the United States Department of Education, the federal agency charged with interpretation and enforcement of FERPA, has opined that a parent may only inspect a surveillance videotape showing his or her child if no other students appeared in the tape. It has also informally advised that a videotape is only an education record for the students directly related to its subject, such as a fight. See Letter re: Berkeley School District (October 31, 2003). Even if a videotape is considered an educational record, it may still be disclosed depending on the school s directory information policy (and whether a parent has opted out ). b) However, a court in New York has held that a videotape of an altercation between students at school was not an education record, stating, FERPA is not meant to apply to records, such as the videotape in question which was recorded to maintain the physical security and safety of the school building and which does not pertain to the educational performance of the students captured on this tape Clearly, the videotape in question is not an educational record within the meaning of FERPA. See Rome City School District v. Grifasi, 806 N.Y.S.2d 381 (Oneida County Sup. Ct 2005). c) There is no consensus as to whether video recordings of students obtained through security cameras are considered educational records and therefore protected under FERPA. As such, school districts may wish to blur images of any students on any video or obtain consent from parents to use the video under FERPA, prior to entering such videos into evidence in any proceedings, such as a disciplinary hearing. 3. However, when the video recordings are of areas that are visible to the public, such as parking lots or fields, the video recordings are not protected by FERPA. 4. In addition to FERPA considerations, students also maintain rights under the Fourth Amendment (albeit less than the general public) to be secure from unreasonable searches and seizures in school. See New Jersey v. T.L.O., 469 U.S. 325 (1985). As such, when deciding whether to install surveillance -14-

15 cameras in student areas, one must determine whether the students have a reasonable expectation of privacy in the area/location that the camera will be installed. For example, in Brannum v. Overton County Sch. Bd., 516 F.3d 489 (6 th Cir. 2008), a school district was found to have violated students rights to privacy when the school district installed video cameras in a locker room which recorded students while they changed clothes. X. Miscellaneous A. Attorney-Client Privilege and Workplace s 1. Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 990 A.2d 650 (N.J. Sup. Ct. 2010): In Stengart, the New Jersey State Supreme Court held that an employee had an objectively reasonable expectation of privacy in pre-suit messages found on the employee s company issued computer that were exchanged between the employee and her attorney, through the employee s personal, web based and password protected account. The Court further held that such s were protected by attorney client privilege and that such communications would still remain privileged regardless of whether the employer s (Loving Care s) computer policy clearly banned all personal use of company computers and provided unambiguous notice that it was authorized to retrieve and read employees attorney-client communications accessed on a personal, password protected account. The Court s holding was based upon an analysis of two areas: (1) the adequacy of the notice provided by Loving Care s computer policy and (2) the important public policy concerns raised by attorney-client privilege. 2. Scott v. Beth Beth Israel Med. Ctr., Inc., 17 Misc.3d 934, 847 N.Y.S.2d 436 (New York County Sup. Ct. 2007): Held that a physician s communications with his attorney using the employer hospital s server were not confidential for the purposes of attorney-client privilege. While the Court noted that, pursuant to CPLR 4548, privileged communication will not lose their privileged character solely because they are communicated by electronic means, it nonetheless held that the s were not privileged based upon the hospital s computer policy banning personal use, informing employees that their use of hospital computer and systems will be monitored, and the physician s knowledge of the policy, which diminished any expectation of confidentiality. 3. Curto v. Medical World Commc ns, 2006 WL (E.D.N.Y. 2006): Holding that an employee s personal use of a company issued computer in her home did not waive attorney-client privilege or work product immunity of any personal s and/or computer files found on the computer. The company s computer policy stated that employees should -15-

16 not have an expectation of privacy in anything created, stored, sent, or received on the computer system and that the computer system belongs to the company and may be used for business purposes only. The policy further stated that the company may monitor the use of computer resources. In finding no waiver of privilege, the Court held that because the wording of the policy as to whether the company would monitor computer use was ambiguous, the employee worked from home, and the computer was not connected to the company s computer server or located in the company s offices, it was reasonable for the employee to believe that the personal s and documents stored on her computer were confidential. The Court also noted that the company did not enforce its computer policy and that the employee attempted to delete all her personal files from the computer in finding that privilege was not waived. 4. Alamar Ranch, LLC v. County of Boise, 2009 WL (D. Idaho 2009): Held that an employee waived the attorney-client privilege in s she exchanged with her attorney from her work computer, using her work account. The employer s computer policy, which was communicated to the employee, stated that any s sent from work accounts were the property of the employer, monitored and stored, and should not be assumed confidential. B. Privacy of Text Messages on Employer Provided Mobile Phones/Pagers 1. Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9 th Cir. 2008): In Quon, the Ninth Circuit held that a police officer, as well as the individuals with whom the officer exchanged text messages, had a reasonable expectation of privacy in personal text messages he sent and received using pagers issued by the employer police department. The Court held that an informal policy, established by the officer s supervisor, that personal text messages would not be reviewed if officers paid for any overages charges from personal use, created a reasonable expectation of privacy in such text messages. The Court further held that the police department s search of the officer s pager was unreasonable in scope because it was excessively intrusive in light of the non-investigatory purpose of the search. Therefore, since the officer had a reasonable expectation of privacy in the text messages, the Court found that the search violated the officer s Fourth Amendment rights. 2. City of Ontario v. Quon, 136 S.Ct (2010). Assuming (1) that the police officer had a reasonable expectation of privacy in text messages sent on a pager provided to him by the city, (2) that the city s review of a transcript of the officer s text messages constituted a search, and (3) that the -16-

17 principles applicable to a government employer s search of an employee s physical office apply with at least the same force when a public employer intrudes on an employee s privacy in the electronic sphere, the city s review of officer s text messages was reasonable, and thus did not violate the Fourth Amendment in that the search was motivated by a legitimate workrelated purpose of determining whether the character limit on city s contract with the wireless communications provider was sufficient to meet city s needs, and the search was not excessively intrusive in light of that justification. The Supreme Court held that because the search of Quon s text messages was reasonable, the city did not violate respondents Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. -17-

18 APPENDIX 1 SAMPLE CONTRACT LANGUAGE REGARDING SURVEILLANCE CAMERAS The parties acknowledge that the School District has installed security cameras within and in areas outside of its school buildings and facilities for the purpose of protecting and ensuring the safety of its students, staff and property. However, notwithstanding this purpose, it is understood and agreed that the any evidence of criminal activity, misconduct and/or other wrongful conduct by unit members captured on the District s security cameras may be used by the District for the purpose of discipline, including but not limited to the use of such evidence in a disciplinary proceeding. The District agrees that it will not use the security cameras for the purpose of evaluating unit members and no security cameras shall be installed in employee restrooms, employee locker rooms, or rooms designated by an employer for employees to change their clothes in accordance with Labor Law Section 203- c. -18-

19 APPENDIX 2 SAMPLE ACCEPTABLE USE POLICY SCHOOL DISTRICT COMPUTER NETWORK AND TECHNOLOGY ACCEPTABLE USE POLICY FOR STAFF School District (the District ) provides technical equipment, software and systems to support the administrative functions and the educational mission of its schools. This Acceptable Use Policy ( AUP ) provides mandatory guidelines for appropriate, responsible, ethical and legal use of such technology devices and systems. No set of guidelines or rules can cover every contingency. Therefore, in addition to complying with the guidelines and requirements set forth in the AUP, every user of the District s Technology is expected to exercise good judgment. Proper use of the District s Technology helps protect its staff, its students and the District from legal liability and helps to prevent disruption of and/or damage to the Technology. It is imperative that each staff member review and comply with this AUP. Ownership and Purpose All hardware, software, operating systems, storage media and devices, network accounts, Internet access devices, wireless communications devices and other technology at the District s schools and/or facilities or provided by District or its consultants (collectively Technology ) are the property of the District and not that of anyone to whom Technology is provided or assigned. This Technology includes but is not limited to computers, laptops, cell phones, personal digital assistances (e.g. Palm or Blackberry devices), computer networks, data and storage devices, Internet access, mechanisms, software, firmware, hardware, cameras and [fill in with any other Technology you make available to employees]. Technology is to be used solely in furtherance of the District s administrative functions and educational mission. Use of the District s Technology is a privilege not a right. Violation of the guidelines and requirements in this AUP or other inappropriate use may result in the suspension or revocation of the privilege to use the District s Technology and/or other disciplinary action including termination. All data, records, files, communications (including , text messages, instant messages, voic messages and all other messages) generated by or on, stored by or on or transmitted through the District s Technology (collectively Data ) are the property of the District. Employees should have no expectation of privacy in Data even if labeled private, confidential or the equivalent. The District reserves the right to access, view, monitor and disclose Data, at any time for any purpose [or limit to maintain integrity of the Technology and to ensure all users are using Technology responsibly and in compliance with the policies and guidelines set forth herein]. Data may include records of access to and content in web-based, password-protected accounts accessed via Technology. An employee s use of the District s Technology constitutes his/her consent to this access and disclosure. -19-

20 The deletion of Data may not eliminate it from the District s Technology devices or systems and the District reserves the right to access, retrieve, view, monitor and disclose any deleted Data. The District also reserves the right to remove, delete, modify, or otherwise disable access to any materials that infringe copyright or are otherwise illegal, violate this AUP or are determined to be inappropriate under the guidelines and purposes set forth in this AUP. Further, the District reserves the right to [or, if occurring, affirmatively does] log/record Internet and use and to monitor file server and other Technology utilization by users of the District Technology and to remove user accounts/access to prevent unauthorized activity or activity that violates this AUP. Scope This AUP applies to officials, employees, contractors, consultants, temporary employees and all other individuals that utilize or access the District s Technology at the District offices, facilities and/or schools or at any other location including but not limited to via remote access on behalf of the District. This AUP applies to all Technology owned, leased or licensed by the District or otherwise provided for use by the District. Proper Use and Affirmative Obligations of Users 1. Users are responsible for exercising good judgment concerning the use of Technology. 2. If a password(s) is assigned by the District or created by the user to utilize any Technology device, service or system, the user shall not reveal his/her password to anyone. [This assumes that IT has administrative access to all Technology.] 3. Each individual in whose name an access account is issued is responsible at all times for its proper use and all usage associated with such account. 4. Users must comply with all laws governing Technology including but not limited to intellectual property rights, such as copyright. 5. Users are expected to abide by generally accepted rules of etiquette. This includes being polite and using only appropriate language. Abusive language, vulgarities and swear words are all inappropriate and prohibited. 6. Only District Technology may be connected to the District network or other Technology. If a consultant, vendor, or visitor needs to connect to the District s Technology, he or she must have prior approval from [title of District personnel with authority]. -20-

21 Prohibited Uses 7. Each User must log off from any account when he/she completes his/her work or leaves his/her workstation or device, even if he/she remains in the same room or physical location as the work station or device. 8. If a user believes District Technology has been infected with a virus, is nonresponsive or is experiencing other performance impairments, he/she must notify [title of appropriate person] immediately. 1. Users shall not use Technology to bully others, to harass others, to infiltrate systems or networks and/or to damage software, components of devices, systems, services or networks (by virus or otherwise), whether that of the District or of a third-party. 2. Users shall not use Technology to access, download, transmit or process material that is pornographic, obscene, offensive, sexually explicit or dangerous to the integrity of the District s Technology or devices, systems, services, software, firmware or networks of any other person or entity. 3. Users shall not use another s account or password. 4. Users shall not send anonymous messages or files. 5. Use of the Technology in a manner that misrepresents the user or impersonates others is prohibited. 6. Users should not reveal through Technology their home addresses, phone numbers, social security numbers, photographs or any other personal information. Similarly, users are prohibited from revealing such information about others. 7. Users shall not reveal through Technology the home addresses, phone numbers, social security numbers, photographs or any other personal information about a student. 8. Users are prohibited from using Technology for political lobbying, commercial activity (including advertising) or conducting private business. 9. Users shall not install software on District Technology, including software that can be downloaded or uploaded from the Internet for free or upon payment of requisite fees. If a user requires software necessary for the performance of his/her District functions, he/she must contact [title of appropriate person]. 10. Users shall not modify software settings or programs. 11. Users shall not make unauthorized copies of District software/data. -21-

22 12. Users shall not download or install files that are protected by copyright, including but not limited to movies, music and games. 13. Users shall not disable virus software or otherwise prevent regular updates to same. 14. Users shall not circumvent or attempt to bypass the security, filter, screening or blocking software of any Technology. 15. Users shall not install or connect personal hardware or firmware devices to District Technology or otherwise use personal hardware or firmware devices in conjunction with District Technology. Only hardware owned by the District may be installed, connected to or otherwise used in conjunction with District Technology. 16. Users shall not access social networking sites or chat rooms through District Technology. 17. Users shall not use Technology to receive, transmit or make available to others messages that are racist, sexist, abusive or harassing to others. There should be no expectation of privacy in messages nor files or data created by, stored on or transmitted through the District s Technology. Messages and files are subject to access and review by District administrators, legal officials, or law enforcement personnel. All users should be aware that messages may be archived and that old messages may be accessed. In addition to the foregoing policies, the following apply to 1. Users shall not use District for personal communication. 2. Users shall treat messages as written communications. 3. Users shall not open attachments unless the is from a trusted source. 4. Users shall not send containing attachments that are not related to District business. 5. Users shall not use to: a. send threatening, harassing, discriminatory, racist, sexist or defamatory messages; b. infiltrate computer systems and/or damage software components of a computer or computer system (by virus or otherwise); -22-

23 c. download or transmit obscene, discriminatory or other inappropriate material; d. access material that is dangerous to the integrity of the District network or Technology; e. reveal your home address, telephone number, social security number, photographs or any other personal information nor reveal such information about others, including but not limited to students; f. send anonymous messages or files. 6. Users shall not read, delete, copy or modify, without permission, messages of others and shall not interfere with the ability of other users to send or receive e- mail messages. 7. Users shall not send with personal solicitations or information related to items for sale, e.g. tickets. 8. Users shall not forward information about computer viruses or security threats. Please send them to [title of appropriate person] for evaluation. 9. [can specify communications for which should not be used.] 10. [can specify deletion procedures] 11. [can specify reply conventions] District Responsibilities The District endeavors to provide technology which it believes is useful and appropriate for District business and the education of its students. The District cannot and does not make any warranty of any kind, express or implied, with regard to Technology provided to its staff and assumes no responsibility for the quality, availability, accuracy or viability of such Technology. The District will not be responsible for any damages suffered by any user, including, but not limited to, loss of data or service interruptions caused by errors, omissions or negligence of any District user, nor for any reason resulting from the use of District Technology in contravention of the rules set forth in this Policy. Although filtering software is utilized, the District cannot guarantee that using District Technology will not result in access of information which may be upsetting or offensive. Sanctions Any employee found to have violated this policy may be subject to disciplinary action, up to and including termination of employment, losing computer access on a temporary or -23-

24 permanent basis, suffering financial penalties, and facing possible prosecution for violation of local, state and federal laws. Acknowledgement of Receipt of Acceptable Use Policy The undersigned acknowledges that s/he has reviewed this School District Computer Network and Technology Acceptable Use Policy and agrees to utilize Technology (as defined herein) in compliance with this policy. Name Print Name: Date: -24-