This “invasion of privacy” question is the lynchpin of a new lawsuit from two former employees of one of the largest beer companies in the world. The complaint (available here), which began in state court, has been removed to federal court in New Jersey.
David Gialanella, reporting for the New Jersey Law Journal (full article here), summarizes the facts of the case:
A year ago, five company employees, including Nascimento and Yule, exchanged a series of text messages, apparently disparaging fellow employee Alex Davis. The messages were transmitted using their personal mobile phones, and on their own time, but Nascimento’s personal phone was linked to his company iPad through the iMessaging application, causing the messages to be stored on the iPad, according to the complaint.
Afterward, Nascimento was issued a new iPad, while the old one—with his text messages and credit card information still stored on it—was loaned to Davis. Davis discovered the text messages and complained, after which Nascimento, Yule and the others were questioned by investigators hired by Anheuser-Busch, according to the complaint.
Nascimento, Yule and a third employee involved in the messaging were terminated last September for “‘violation of corporate policy regarding use of company equipment,’” while a fourth was reprimanded, according to the complaint.
The plaintiffs claim that their termination amounts to wrongful discharge in violation of a “clear mandate of pubic policy.” That “clear mandate of public policy,” according to the plaintiffs, is a right to privacy emanating from the NJ Constitution, which they construe as creating “a reasonable expectation of privacy in their out-of-work communications and conduct.”
Off-duty conduct laws.
Many states have specific laws which forbid employers from taking action against employees based on their activities outside of work. For example, California, prohibits adverse employment actions stemming from lawful conduct occurring during nonworking hours away from the employer’s premises. While New Jersey has an off-duty conduct law, it’s not nearly as employee friendly. Indeed, NJ prohibits an employer from taking any adverse action against any employee because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment.
So, the statute does not protect text messaging or other outside-the-office communications.
A reasonable expectation of privacy?
The argument here is not that off-duty-conduct laws apply, but, as noted above, that the NJ Constitution protects the plaintiffs’ text messages.
IMHO, any semblance of privacy the plaintiffs had in texts on a personal iPhone was destroyed when they were commingled — accidentally or not — with information stored on company-issued iPads. Indeed, I imagine that the company had a handbook policy reminding employees that they should have no expectation of privacy in any communications made over or stored on company electronic devices.
But, really, the appearance of personal text messages on the company iPad is a red herring. Presumably, the company can fire employees for “off-the-clock” speech that never touches a company-issued device. How many times on this blog have I addressed employees who get fired for doing dumb stuff on social media? To the extent that the framers of the NJ Constitution were focused on invasions of privacy, I’m fairly certain that they weren’t thinking about employees using social media — or sending text messages either.
So, I don’t place much stock in the plaintiffs’ case here. But, we’ll see…
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