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    Privacy and the Workplace

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    Michael A. Smyth v. The Pillsbury Company

    Michael Smyth worked for the Pillsbury Company. Pillsbury installed an electronic mail (e-mail) system in order to "promote internal communications between its employees." Pillsbury told its employees that e-mail transmissions were confidential and would not be intercepted or used by Pillsbury against its employees as grounds for termination. Smyth exchanged e-mails with his supervisor which was, in fact, intercepted by Pillsbury management. Three months later, Smyth was terminated for transmitting what it deemed to be "inappropriate and unprofessional comments "over its e-mail system. (The e-mails contained threats to "kill the backstabbing bastards" in discussions of management and referred to the company holiday party as the "Jim Jones Kool Aid affair.")

    Pennsylvania is an employment at-will jurisdiction and an employer "may discharge an employee with or without cause, at pleasure, unless restrained by some contract." However, in the most limited of circumstances, exceptions have been recognized where discharge of an at-will employee threatens or violates a clear mandate of public policy. A "clear mandate "of public policy must be of a type that "strikes at the heart of a citizen's social right, duties and responsibilities."

    Plaintiff claims that his termination was in violation of "public policy which precludes an employer from terminating an employee in violation of the employee's right to privacy as embodied in Pennsylvania common law." In support for this proposition, plaintiff directs our attention to a decision by our Court of Appeals in Borse v. Piece Goods Shop, Inc. In Borse, the plaintiff sued her employer alleging wrongful discharge as a result of her refusal to submit to urinalysis screening and personal property searches at her work place pursuant to the employer's drug and alcohol policy. After rejecting plaintiff's argument that the employer's drug and alcohol program violated public policy encompassed in the United States and Pennsylvania Constitutions, our Court of Appeals stated "our review of Pennsylvania law reveals other evidence of a public policy that may, under certain circumstances, give rise to a wrongful discharge action related to urinalysis or to personal property searches. Specifically, we refer to the Pennsylvania common law regarding tortious invasion of privacy."

    The Court of Appeals in Borse observed that one of the torts which Pennsylvania recognizes as encompassing an action for invasion of privacy is the tort of "intrusion upon seclusion." As noted by the Court of Appeals, the Restatement (Second) of Torts defines the tort as follows: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Liability only attaches when the "intrusion is substantial and would be highly offensive to the 'ordinary reasonable person.'" Although the Court of Appeals in Borse observed that "the Pennsylvania courts have not had occasion to consider whether a discharge related to an employer's tortious invasion of an employee's privacy violates public policy," the Court of Appeals predicted that in any claim where the employee claimed that his discharge related to an invasion of his privacy "the Pennsylvania Supreme Court would examine the facts and circumstances surrounding the alleged invasion of privacy. If the court determined that the discharge was related to a substantial and highly offensive invasion of the employee's privacy, [the Court of Appeals] believe that it would conclude that the discharge violated public policy." In determining whether an alleged invasion of privacy is substantial and highly offensive to a reasonable person, the Court of Appeals predicted that Pennsylvania would adopt a balancing test which balances the employee's privacy interest against the employer's interest in maintaining a drug-free workplace.

    Because the Court of Appeals in Borse could envision at least two ways in which an employer's drug and alcohol program might violate the public policy protecting individuals from tortious invasion of privacy by private actors" the Court vacated the district court's order dismissing the plaintiff's complaint and remanded the case to the district court with directions to grant Borse leave to amend the Complaint to allege how the defendant's drug and alcohol program violates her right to privacy. Applying the Restatement definition of the tort of intrusion upon seclusion to the facts and circumstances of the case sub judice, we find that plaintiff has failed to state a claim upon which relief can be granted. In the first instance, unlike urinalysis and personal property searches, we do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost.

    Significantly, the defendant did not require plaintiff, as in the case of a urinalysis or personal property search, to disclose any personal information about himself. Rather, plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications. In the second instance, even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications over the company e-mail system, we do not find that a reasonable person would consider the defendant's interception of these communications to be a substantial and highly offensive invasion of his privacy. Again, we note that by intercepting such communications, the company is not, as in the case of urinalysis or personal property searches, requiring the employee to disclose any personal information about himself or invading the employee's person or personal effects. Moreover, the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments. In sum, we find that the defendant's actions did not tortiously invade the plaintiff's privacy and, therefore, did not violate public policy. As a result, the motion to dismiss is GRANTED.

    Case Questions

    1. Do you agree with the court's conclusion that, even if Smyth had a reasonable expectation of privacy of his transmissions, an interception would not be highly offensive to a reasonable person?

    2. Are you sympathetic to an employer's reasons for wanting to intercept e-mail such as that involved in this case?

    3. The court seems to be saying that, even though Pillsbury stated that it would not intercept e-mail, the employee should not have relied on this promise. Do you agree with this conclusion?

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    Solution Preview

    1. Do you agree with the court's conclusion that, even if Smyth had a reasonable expectation of privacy of his transmissions, an interception would not be highly offensive to a reasonable person?

    Given the merits of the case as presented in the attached <case_question.doc>, it is difficult to conceive of an interpretation of the facts in which the employer's actions could be 'highly offensive to a reasonable person', given that the intrusion was not the kind that exposed personal information that the employee would not have provided on a voluntary basis. In other words, although the case study cites the Borse case as background, the nature of the Borse case and the case under consideration are different enough to question whether one can draw similar conclusions, or that the opinion in Borse can be applied to the case in question.

    However, consider a recent case in New Jersey where the employer retrieved emails that the employee exchanged with her attorney on a corporate laptop which were sent by the employee under her private, web-based email system, and ...

    Solution Summary

    Michael A. Smyth v. The Pilsbury Company - Employees do not automatically or necessarily have an expectation of privacy at the workplace.