Privatizing Workplace Privacy

By Secunda, Paul M. | Notre Dame Law Review, November 2012 | Go to article overview

Privatizing Workplace Privacy


Secunda, Paul M., Notre Dame Law Review


Perhaps "the" question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public-sector and private-sector employees, who have different legal statuses under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer's text messages from his city-issued pager.

In a cryptic decision, Justice Kennedy held for a unanimous Court that assuming the officer had a reasonable expectation of privacy in the pager, the City's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated by the Supreme Court in O'Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in O'Connor, it was reasonable because it would be considered "reasonable and normal" in the private-sector workplace. To varying degrees, both of these legal tests suggest that questions of workplace privacy in the public and private sectors should be treated the same.

Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. Maintaining that public-sector workers are entitled to greater levels of privacy protections based on the text of the Constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this Article argues for a new, two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment's warrant and probable cause requirements to those searches undertaken for investigatory purposes.

INTRODUCTION

Conventional wisdom has long held that public employees with federal constitutional protections have stronger workplace rights than their private-sector counterparts. For instance, Samuel Issacharoff observed in 1990 that, "[s]ince the 1960s, the public sector has been the source of dramatic expansions in employee rights to free expression, due process, and privacy." (1) That this "dramatic expansion" occurred solely in the public sector stemmed from the fact that federal constitutional claims are only able to be brought against public employers as a result of the state action doctrine. (2)

In the workplace privacy context, (3) this state of affairs meant that it was generally believed that public employees under the Fourth Amendment (4) had greater expectations of privacy than their private-sector counterparts. (5) Without federal constitutional protections, private-sector employees must instead rely on either the common law of torts (currently being restated in Chapter 7 of the Restatement of Employment Law) (6) or on various other federal and state legislative enactments, (7) for their workplace privacy rights.

Yet, this understanding that public employees have more privacy protection in the workplace than their private-sector counterparts has been placed in considerable doubt by two recent developments. First, the startling pace of workplace technological innovation has made it more likely that government employers will utilize technologically advanced methods to intrude upon their employees' workplace privacy interests. (8) The second development is the recent decision by the U.S. Supreme Court in City of Ontario v. Quon, (9) validating the use by government employers of some of these very same technological methods to invade public employees' privacy interests. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Privatizing Workplace Privacy
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.