Searching an employer’s computer for evidence of employee misconduct

Searching an employer’s computer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op 28192, Onondaga County Ct, Fahey, J. [Not selected for publications in the Official Reports.]

Two employees were each charged with the crimes of Defrauding the Government in violation of Section 195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the Penal Law.

Both individuals asked the court to suppress evidence obtained by District Attorney’s “White Collar Crime Unit” as the result of a search of their computers, contending that they did not consent to the search and that the search warrant issued by the County Court was issued without sufficient probable cause. They also argued that the fruits of the search of their computers must be suppressed because they had an expectation of privacy in their computers; that the investigators from the District Attorneys Office did not have the consent of either of them to search the computers; and that the search warrant obtained after the viewing of the document on the Casey computer was the "fruit of the poisonous tree."

Addressing the issue of “consent,” the Court said that both employees “have demonstrated a legitimate and reasonable expectation of privacy in the computers searched.” Finding that the searches were conducted without such consent and that the seizures of the computers resulted solely from the warrantless search of the computer prior to the issuance of a search warrant, the motions made by both Wilkinson and Casey to suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that this was a criminal proceeding and the rules of evidence are stringent and controlling in such litigation. Such is not the case in administrative disciplinary actions where the hearing officer or arbitrator is not bound by the formal rules of evidence.

Recent examples of the approval of the use of computer, or computer related, evidence to find an employee guilty of administrative disciplinary charges include:

Leo Gustafson v Town of N. Castle, 45 A.D.3d 766, Appellate Division, Second Department - The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports] – the employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

In addition,a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment. In Fraser v Nationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.

The full text of the Wilkinson - Casey decision is posted on the Internet at: