Know Your Right
Unauthorized Computer Use

By JAMES A. BROWN

Last month's column addressed off-duty conduct which can result in disciplinary penalties including termination of employment. That column essentially examined whether there exists any "zone of privacy" in which your actions are immune from discipline.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

Today's column addresses under what conditions a public employer may discipline you for your use of the office computer. Even though the computer may be at your desk and may have been "assigned" to you, it should never be confused with your own personal computer at home. The consequences of taking certain liberties with your office computer may result in swift disciplinary penalties.

4th Amendment Rights

As previously explained, public employees are entitled to an added layer of protection derived from the New York State and United States Constitutions. This is because public employees are employed by the government and thus have certain Constitutional rights not available to employees in the private sector.

The U.S. Constitution's Fourth Amendment prohibits the government from engaging in unreasonable searches and seizures. The Fourth Amendment protects public employees, if they are deemed to have a reasonable expectation of privacy, from employer-initiated workplace searches. Unfortunately, as I stated in "Big Brother is Watching You" (Oct. 15, 2004), courts rarely find a "reasonable expectation of privacy" in the workplace.

A public employee is deemed to have some "privacy rights" in workplace areas over which the employee has "exclusive use." Under this test, privacy rights tend to attach to personal lockers. And yet under the "exclusive use" test, locker rooms (because they are open to co-workers) are not protected against the use of surveillance cameras or government searches. Moreover, a state appellate court has ruled that the lockers of police officers may be searched because the officers' privacy interests are diminished by "virtue of their membership in a paramilitary force."

Computer Searches

With regard to office computers, the Federal appeals court in New York held that public employers, even in the absence of a published "computer use policy," may conduct reasonable searches of office computers. To conduct such searches, an employer must be able to show "evidence of suspected work-related employee misfeasance" or a work-related reason like the need to retrieve a computer file.

Thus, an employer's right to inspect your office computer is not unlimited, but must be based on some suspicion of misconduct or work-related need. Quoting from the United States Supreme Court, the Federal appeals court observed that "public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner."

In my own practice, I have found that agencies, as well as the city's Department of Investigation, regularly search computer hard drives when certain complaints are made against an employee. For example, if an employee is believed to be using his or her computer for purposes unrelated to the job (perhaps to further the interests of a second job), that employee's computer hard drive will be searched. Other times, your employer will inspect your computer hard drive if you are suspected of viewing pornography or other non-work-related Web sites. As an aside, a court last month found that the mere presence of pornography on an office computer is some evidence of a gender-based hostile work environment (and thus further evidence of misconduct).

Disciplinary Actions

Any evidence of misconduct obtained from your office computer's hard drive will typically be referred for disciplinary charges. Needless to say, the evidence derived from a computer hard drive is difficult to refute.

The most likely disciplinary charge arising from computer misuse is some variation on "theft of time." Such a charge is a serious infraction and will typically result in termination provided the amount of "stolen" time is not minor.

Some agencies will permit their employees to engage in some occasional, incidental use of the Internet during lunch and other breaks provided the subject matter is appropriate. It is incumbent upon you to make certain you know your agency's computer policy to avoid being served with disciplinary charges, based on irrefutable proof, alleging theft of time or simply unauthorized use of your office computer.