13 May ARE YOU SYMPATHETIC TO AN EMPLOYER’S REASONS FOR WANTING TO INTERCEPT E-MAIL SUCH AS THAT INVOLVED IN THIS CASE?
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?Please read the case and respond to the three questions at
the bottom.Michael A. Smyth v. The Pillsbury CompanyMichael 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 Questions1. 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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