October 22, 2019

October 21, 2019

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When Departing Employees Keep Their Work Computers . . . And Falcons

On the day before Christmas, a New York trial court delivered a discovery opinion that was for the birds. Literally. At issue was the extent, if any, a business could review the contents of a work computer that was retained by a recently departed employee. The employee, allegedly, had been using confidential information to unfairly compete with the former employer, and the computer may have contained evidence of his wrongdoing.

What makes the case particularly interesting, and, to be honest, cool, is that falcons were the subject of the dispute. Yes, falcons. The plaintiff provided falcons to regional landfills (to eradicate rodents and foul), and the defendant, a long-time employee, resigned after complaining of unethical business practices. These practices included the plaintiff's alleged attempts to smuggle falcons from the United States into Canada. The plaintiff, however, filed suit after several of its customers signed contracts with the departing employee's new company, and the employee failed to return certain company property, including a laptop and several birds.

After the plaintiff filed suit, the court entered an order allowing for the employee's work computer to be seized, and a third party took possession of the computer. The plaintiff claimed it had the right to look at its contents (since it was a work computer), while the defendant claimed there was a lot of personal  information on the computer.

Here's why this case matters to any business that provides laptops to its employees. The court said: 

In assessing an employee's reasonable expectation of privacy in a work computer or e-mail account, courts have increasingly turned to a set of four factors: (1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Applying these factors, the court determined the employee retained an expectation of privacy in his personal e-mails and documents, even though they resided on a work computer. The employee's attorneys would therefore conduct the initial review of the data before providing any relevant information to the plaintiff's attorneys. That's undoubtedly what the plaintiffdid not have in mind.

Departing employees who keep company property so they can make use of confidential business information are all too common. It's therefore always a good time to check your policies concerning your employees' use of work property.

The full text of the court's opinion (and it's really cool) can be found here.

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About this Author

Employers today face expanding and complex employment legislation as well as a growing body of regulatory requirements that govern the employment relationship. Lawsuits brought by employees also are steadily rising, as are enforcement actions and audits by government agencies responsible for enforcing employment laws, such as the Equal Employment Opportunity Commission, the U.S. Department of Labor, Immigrations and Customs Enforcement and the Office of Federal Contract Compliance Programs.  

In this environment, employers need experienced legal counsel capable of providing sound...