Privacy in the Workplace

James R. Becker, Jr.

February 9, 2019

One question I get asked by both employers and employees is who can have access to what an employee does on his or her work computer.  The answer in Tennessee is really very simple and often surprises many employees.  If the information is on the employer’s computer, it is the employer’s information.  This means that any searches the employee performs on the computer, personal e-mail that is opened on the computer and almost anything else that travels through the employer’s computer or server is the property of the employer.  It is a best practice for employers in this situation, however, to have a published policy that puts employees on notice that the desktop computer is not private.

Let’s take a look at a recent case I was asked about by an employer.  An employee did searches on the employer’s computer during hours and the employer found those searches.  The employee was searching “my female boss is such a bitch” and “why are some women such cu**y bosses.”    The employee was also searching for jobs on Indeed and perusing her personal e-mail during working hours.  Not surprisingly, the question posed to me was whether that employee could be fired.  The employer had a policy that said information stored on the computer is the property of the employer.  My answer, also not surprisingly, was a clear yes.  Not only was the employee misusing the employer’s equipment, but she was referring to her employer in derogatory terms.  Interestingly, had the employee expressed this same sentiment in an environment in which she was complaining in-person to co-workers, this conduct may have had more protection.  However, because this was done on the employer’s computer during working hours there was no such protection and the employee lost her job.

The moral of this story for employees is to never assume that just because your employer is not standing over your shoulder, he or she cannot see what you are doing on your computer.  It is not hard in today’s world to do these types of searches, to check your personal e-mail or apply for another job on your phone and during your lunch break.  The things you put on your employer’s computer are not privileged, they are not protected and they are not always especially hard to find.  For employers, the moral is somewhat different, remain vigilant to what your employees are doing on their computers and take action when you find misconduct.