California Court Rejects Employee’s Privacy Claim Regarding Company Computer Provided For Employee’s Home Use

In TBG Insurance Services Corp. v. Superior Court of Los Angeles (2002) 117 Cal.Rptr.2d 155, the California Court of Appeal, Second Appellate District, determined that an employee waived his right to privacy regarding information he stored on a computer that his employer furnished to him for use at home.

Employee, Robert Zieminski, used two computers owned by Employer, TBG Insurance Services: One at the office, and one at his residence. Employee signed Employer’s “electronic and telephone equipment policy statement,” in which he agreed: (1) that he would use both computers for business purposes only; (2) that he would not use the computers for “improper, derogatory, defamatory, obscene or other inappropriate purposes”; (3) that the computers would be monitored by company personnel; (4) that communications transmitted by the computers were not private; and (5) that improper use of the computers could result in disciplinary action, including discharge. Employer terminated Employee’s employment on the ground that he had violated the electronic policy he had signed by repeatedly accessing pornographic sites on the internet while at work. Employee sued, arguing that Employer’s real reason for firing him was so that it could profit by repurchasing his non-vested stock.

In responding to Employee’s lawsuit, Employer asked that the trial court order Employee to return the computer Employee had used at home, without deleting any of the information stored on the computer’s hard drive. Employer argued that such information was relevant to the lawsuit, since a showing that Employee had accessed pornographic sites on the computer he had used at home could discredit Employee’s claim that the pornographic sites merely “popped up” on his office computer and that he had not, in fact, “accessed” them himself. When the trial court denied Employer’s request, Employer petitioned the Court of Appeal to order Employee to return the computer. The Court of Appeal ruled in Employer’s favor.

Finding that the home computer was indisputably relevant, the Court of Appeal turned to the issue of whether Employee, under the circumstances, had a reasonable expectation of privacy. In so doing, the Court looked at two major factors:

  • Community norms. The Court noted that the vast majority of this country’s major firms monitor, record and review employee communications and activities on the job, including telephone calls, e-mails, internet connections, and computer files. Companies do this for a variety of reasons, relating, for example, to compliance and liability issues, performance reviews, productivity measures, and security concerns. Therefore, “the use of computers in the employment context carries with it social norms that effectively diminish the employee’s reasonable expectation of privacy with regard to his use of his employer’s computers.”
  • Employee’s consent to Employer’s written policy statement. The Court of Appeal held that, upon reading, having understood, and agreeing to adhere to Employer’s policy statement, Employee should have been cognizant of the probability that Employer might monitor the files and messages stored on the company computers he used at the office and at home. Employee had had the opportunity to consent to or reject the policy, and he had also had the opportunity to limit his use of the home computer to purely business-related matters. Because Employee agreed to Employer’s policy, yet chose to use Employer’s computers for personal matters, Employee “fully and voluntarily relinquished his privacy rights in the information he stored on his home computer, and [could not] say that he nevertheless had a reasonable expectation of privacy.”

Finally, although the Court determined that Employee had voluntarily waived whatever right of privacy he might have had as to the information he had stored on the computer he used at home, the Court noted that other information stored on the computer might have no rational bearing on the lawsuit. Accordingly, the Court directed the trial court to consider Employee’s claim that he should not be required to reveal unrelated personal information stored on the computer, such as financial, tax, and other information having no bearing on the matters in dispute.