Attorney Urges Privacy Policies for Public Employers to Avoid Pitfalls

September 07, 2009

Robert Brownstone, Law & Technology Director of Fenwick & West LLP, was exclusively quoted in the Privacy & Security Law Report article "Attorney Urges Privacy Policies for Public Employers to Avoid Pitfalls."

In the age of electronic communication, online business services and social networking sites, both the private and public sector need to have privacy policies in place to establish the level of freedom employees can enjoy when using company-owned electronics. Implementing and enforcing these policies can establish expectations for the employee about appropriate use, while both on and off duty, to avoid legal implications for the employer.

Social networking has introduced a new challenge not only for regulating privacy policies but also for deciding how to deal with off-duty conduct of current or prospective employees.

In the pre-employment phase, for example, "An employer needs to decide whether looking at those pages allows it to draw conclusions about race, religion, sexual orientation, and other characteristics that it would not know about an applicant but for those pages," Brownstone said.

In day-to-day work, employees' e-mails produce trails of memorialized communications that can be become "smoking guns" uncovered in electronic discovery and ultimately introduced into evidence in court. Brownstone noted a recent $25.9 million jury award against Kmart for terminating an employee based upon age discrimination, in a case that included, as plaintiff's evidence, an email from a supervisor suggesting the man was 64 years old and could be persuaded to retire.