Privatizing workplace privacy.

• Author: Secunda, Paul M.

Perhaps "the" question in this age of workplace technological innovation concerns the amount of privacy employees should have in electronic locations in the workplace. An important related question is whether public-sector and private-sector employees, who have different legal statuses under the state action doctrine, should enjoy the same level of workplace privacy. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it audited an officer's text messages from his city-issued pager.

In a cryptic decision, Justice Kennedy held for a unanimous Court that assuming the officer had a reasonable expectation of privacy in the pager, the City's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated by the Supreme Court in O'Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in O'Connor, it was reasonable because it would be considered "reasonable and normal" in the private-sector workplace. To varying degrees, both of these legal tests suggest that questions of workplace privacy in the public and private sectors should be treated the same.

Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. Maintaining that public-sector workers are entitled to greater levels of privacy protections based on the text of the Constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this Article argues for a new, two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment's warrant and probable cause requirements to those searches undertaken for investigatory purposes.

INTRODUCTION

Conventional wisdom has long held that public employees with federal constitutional protections have stronger workplace rights than their private-sector counterparts. For instance, Samuel Issacharoff observed in 1990 that, "[s]ince the 1960s, the public sector has been the source of dramatic expansions in employee rights to free expression, due process, and privacy." (1) That this "dramatic expansion" occurred solely in the public sector stemmed from the fact that federal constitutional claims are only able to be brought against public employers as a result of the state action doctrine. (2)

In the workplace privacy context, (3) this state of affairs meant that it was generally believed that public employees under the Fourth Amendment (4) had greater expectations of privacy than their private-sector counterparts. (5) Without federal constitutional protections, private-sector employees must instead rely on either the common law of torts (currently being restated in Chapter 7 of the Restatement of Employment Law) (6) or on various other federal and state legislative enactments, (7) for their workplace privacy rights.

Yet, this understanding that public employees have more privacy protection in the workplace than their private-sector counterparts has been placed in considerable doubt by two recent developments. First, the startling pace of workplace technological innovation has made it more likely that government employers will utilize technologically advanced methods to intrude upon their employees' workplace privacy interests. (8) The second development is the recent decision by the U.S. Supreme Court in City of Ontario v. Quon, (9) validating the use by government employers of some of these very same technological methods to invade public employees' privacy interests.

In Quon, a SWAT officer for the City of Ontario in California alleged Fourth Amendment privacy violations in relation to a police department's audit of text messages sent to and from his work pager. (10) The City discovered that the officer had been using the pager for non-work-related purposes and that some of the messages were sexually explicit. (11) As a result of the investigation, the officer was found to have violated city work rules and allegedly disciplined. (12)

Writing for a unanimous Court, (13) Justice Kennedy maintained that even if the employee had a reasonable expectation of privacy in his employer-provided pager, the City's search of the pager was reasonable under two possible legal tests. (14) First, under the plurality test enunciated in O'Connor v. Ortega, (15) it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. (16) Second, under the test outlined by Justice Scalia in his concurring opinion in that same case, it was reasonable because it would be considered "reasonable and normal" in the private-sector workplace. (17)

Significantly, the Court in Quon looks to cues from the private sector to determine the appropriate level of privacy protection in public-sector employment. (18) Not only is Justice Scalia's proposed test expressly based on a comparison of privacy interests in the private and public workplaces, but even the plurality borrowed concepts from the private sector to develop its operational realities test. (19) But rather than elevating private-sector privacy rights to the public-sector level, Quon suggests that public employee workplace privacy rights should be "privatized" and reduced to the level of employees in the private sector.

This Article maintains that the equalization of privacy rights in the public and private sector down to the level of the private sector is mistaken. Normatively, public employees should have stronger workplace privacy rights in their physical and electronic workplace locations than their private-sector counterparts for at least three reasons. First, the Fourth Amendment to the U.S. Constitution textually requires such a distinction. (20) Second, and relatedly, the government employer has substantially more power over its employees than private corporations do. (21) Third, public employees function as the eyes and ears of the citizenry to help keep government free from waste, abuse, fraud, and corruption and, consequently, to insure government accountability and transparency. (22)

To reestablish greater workplace privacy protections for public employees, this Article proposes that the Court adopt a new, two-step approach for workplace searches in the public sector. First, a court should determine for what purpose the workplace search is conducted. If the search is for routine and noninvestigatory purposes, a search warrant should not be required and the court should apply the "special needs" exception to the Fourth Amendment. (23) Under the special needs test, the court should determine whether the employee has a reasonable expectation of privacy and whether the search was legitimate in its inception and scope. (24) On the other hand, if a public employer undertakes the search to investigate employee misconduct, the public employer should be required to obtain a warrant based on probable cause, unless the employer can prove that "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search," (25) or that a state public record law requires the documents in question to be disclosed. (26)

This Article discusses the impact of technological workplace innovation on the privacy rights of public employees in four parts. Part I discusses the evolving law of workplace privacy in the public sector. Part II considers recent developments in the workplace privacy law in the private sector, with emphasis on the newly-drafted Chapter 7 of the Restatement of Employment Law. Part III contends that, post-Quon, public-sector employee workplace privacy rights have been reduced to the private-sector level and maintains that public employees should have stronger privacy protections than their private-sector counterparts for textual and prudential reasons. Part IV concludes by proposing a novel, two-step approach to public workplace searches, based on the reason for the search. The hope is that this bifurcated approach to workplace searches by the government will reestablish greater workplace privacy protections for public-sector employees and that they will then be better able to play their crucial government watchdog role.

1. WORKPLACE PRIVACY IN THE PUBLIC SECTOR

   Essentially, there are two major U.S. Supreme Court workplace privacy cases involving physical or electronic location searches in the public workplace. (27) Neither of these cases, O'Connor v. Ortega or the more recent case of City of Ontario v. Quon, provides a singular test for either what constitutes a reasonable expectation of employee privacy or what constitutes a reasonable employer search.

   1. O'Connor v. Ortega

      The Court first examined public employees' rights to privacy at work in the 1987 case of O'Connor v. Ortega. Although the Court had previously held that private-sector employees could have reasonable expectations of privacy in their workplaces under the Fourth Amendment when the police searched their offices, (28) questions remained as to: (1) whether a protectable privacy interest existed when a public employer searched an employee's office, desk, and file cabinets; and (2) whether a warrant based on probable cause was necessary to make the search constitutionally reasonable.

      In O'Connor, Dr. Ortega was the Chief of Professional Education for psychiatry residents at a California state hospital. (29) After being placed on administrative leave for alleged improprieties, hospital officials thoroughly searched his office, desk, file cabinets, and papers, and subsequently seized personal items...