Employee_Privacy_in_the_Government_Workplace - 1...

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1 Copyright (c) 2004 Cumberland Law Review Cumberland Law Review 2004 / 2005 35 Cumb. L. Rev. 639 LENGTH: 14846 words COMMENT: PRIVACY IN THE GOVERNMENT WORKPLACE: EMPLOYEES' FOURTH AMENDMENT AND STATUTORY RIGHTS TO PRIVACY NAME: Rachel Sweeney Green SUMMARY: ... Today's workplace is drastically different from the workplace of a half-century ago. . .. Although there is a lack of judicial precedent dealing with employer monitoring of telephone and oral communications for criminal misconduct in the workplace, courts have considered the issue of whether a search of an employee's computer and e-mail is reasonable when it provides evidence of criminal misconduct. . .. " However, due to the nature of e-mail and Internet operations, carefully crafted and correctly implemented employer monitoring policies, and the courts' reliance upon a statutory framework for analysis of employees' Fourth Amendment rights, the end result is a noticeable difference between employees' privacy rights in using a telephone and using a computer. . .. For several reasons, courts are reluctant to hold that an employee has a reasonable expectation of privacy in his use of e-mail or Internet in the workplace. . .. Conversely, where an employer's computer and electronic communications monitoring policy is insufficient or incorrectly followed, courts are more likely to find that an employee's subjective expectation of privacy is also objectively reasonable. . .. Criticisms of Judicial Interpretation of the Application of the Electronic Communication Privacy Act to the Monitoring of an Employee's Electronic Communications . .. TEXT: I. Introduction Today's workplace is drastically different from the workplace of a half-century ago. Technological advances have made it practical and inexpensive for employers to utilize the most modern of communication devices. While the telephone has long been standard in the workplace, use of computers is rising. The number of employees using e-mail and the Internet at work increased from eighteen percent in 1998 to almost forty-two percent in 2001. n1 In addition, the means by which employers may monitor an employee's conduct are also increasing. Workplace monitoring is becoming a common occurrence and a serious concern in both the private and public sectors.
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2 As workplace monitoring increases, the prevalence of employee claims that such monitoring violates their expectations of privacy increases correspondingly. While the private sector employee can expect little protection from employer intrusion, a public sector employee may rely on his Fourth Amendment right to privacy to defend him against unreasonable searches by his employer. n2 In addition, the Electronic Communications Privacy Act n3 provides another important vehicle to safeguard public employee rights. When analyzing the privacy rights of the government employee in the workplace, however, it is critical to bear in mind that the rights of the individual must be balanced against the right of the government to maintain an efficient and
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Employee_Privacy_in_the_Government_Workplace - 1...

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