Searching an employer’s computer for evidence of employee misconduct

Searching an employer’scomputer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op28192, Onondaga County Ct, Fahey, J. [Not selected for publications in theOfficial Reports.]

Two employees were each chargedwith the crimes of Defrauding the Government in violation of Section195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the PenalLaw.

Both individuals asked thecourt to suppress evidence obtained by District Attorney’s “White Collar CrimeUnit” as the result of a search of their computers, contending that they didnot consent to the search and that the search warrant issued by the CountyCourt was issued without sufficient probable cause. They also argued that thefruits of the search of their computers must be suppressed because they had anexpectation of privacy in their computers; that the investigators from theDistrict Attorneys Office did not have the consent of either of them to searchthe computers; and that the search warrant obtained after the viewing of thedocument 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 legitimateand reasonable expectation of privacy in the computers searched.” Finding thatthe searches were conducted without such consent and that the seizures of thecomputers resulted solely from the warrantless search of the computer prior tothe issuance of a search warrant, the motions made by both Wilkinson and Caseyto suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that this was acriminal proceeding and the rules of evidence are stringent and controlling insuch litigation. Such is not the case in administrative disciplinary actionswhere the hearing officer or arbitrator is not bound by the formal rules ofevidence.

Recent examples of the approvalof the use of computer, or computer related, evidence to find an employeeguilty of administrative disciplinary charges include:

Leo Gustafson v Town of N.Castle, 45 A.D.3d766, Appellate Division, Second Department - The employee, an assistantbuilding inspector with the Town of North Castle, was charged and found guiltyof falsifying official records with respect to where he was while on duty.The individual was assigned a town vehicle for the purpose of making fieldinspections in connection with his employment. The vehicle had a globalpositioning system installed that transmitted information to the town’scomputer reporting the vehicle’s location and movements. Based on thisinformation, the Town charged the employee with falsifying town records as to hiswhereabouts. This, said the Appellate Division, constituted substantialevidence to support the determination that the employee was guilty of falsifyingtown records.

Ghita v Department ofEducation of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New YorkCounty, Docket Number: 0110481/2007 [Not selected for publications in theOfficial Reports] – the employee challenged an arbitrator’s determinationterminating his employment with the New York City Department of Education afterfinding him guilty of downloading a file of pornographic material from his AOLemail account and openly viewed such pornographic material from a schoolcomputer. Supreme Court rejected the individual’s claim that the arbitratorexceeded his authority under Education Law §3020-a, and the award terminatingpetitioner's employment is a violation of public policy and New York StateLaw.

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


In addition,a number of courts have considered the question of an employee's right toprivacy in using his or her employer's computer equipment. In Fraser vNationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court heldthat an employee using his or her employer's computer equipment for personalbusiness does not enjoy any "right to privacy" barring the employer’sreviewing the employee's e-mail that is stored inits computer system. Federal District Court Judge Anita B. Brody decided thatan employer may peruse an employee's e-mail files that are stored in the systemwithout violating either federal or Pennsylvania wiretap laws.

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

Thefull text of the Wilkinson - Casey decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html