WORKPLACE PRIVACY – AN OXYMORON
By Stephen D. Lichtenstein*
INTRODUCTION
The scenario is commonplace. Jim has been working hard as have all his colleagues.
Recent tragic world events and the bleak outlook for the economy and e-commerce, in
general, have negatively affected them. In an effort to cheer up the workplace
environment, Jim turns to his workplace computer and surfs the Net for joke sites. He
accesses tastelesstuff.com and copies several jokes all of which are either critical of
managers and executives or are racially or sexually insensitive. He emails them to his
colleagues one of whom complains to human resources. His employer receives an email
of the jokes and sends Jim a termination notice. 1
Like many companies, Jim’s company should have a policy regarding employer
monitoring of employee’s computer use and email.2 Under what circumstances will the
courts uphold the termination? Can Jim successfully argue that he enjoyed a reasonable
expectation of privacy in the workplace?3 Seemingly, some form of judicial process
would ensue. It is to be noted that this area of the law is not yet settled and probably will
not be in the immediate future.4
*Professor of Law, Chair – Law Department, Bentley College, Waltham., MA
1 See 1999 Workplace Email Abuse Study, Elron Software Corp.
(http://www.elronsoftware.com/pdf/1999_Email_study.pdf), where it was determined that over 85% of the
respondent employees indicated that they use employer email for personal use, over 60% visit sexually
explicit Web sites and more than half received inappropriate workplace emails.
2 See 2000 Workplace Privacy Survey, Society for Human Resource Management and West Group, where
72% of the 722 human resource respondents reported that their companies/organizations had a formal
written policy on monitoring Internet use and 70% had the same regarding email. 94% reported that the
policies were formally shared wit