Sotomayor’s Second Circuit Decisions on Privacy and Workplace Searches

Employee privacy is a hot button issue generally. Privacy in the workplace is also growing in importance: monitoring email, searching employee property, taping conversations, videotaping certain locations of the workplace, and surveilling employees during work hours and while off duty. (See post on recent Supreme Court decision.) Judge Sonia Sotomayor authored one opinion in this area. It, of course, doesn’t deal with all the sub-privacy topics, but it deals with a couple of them. More important, it provides insight to her thinking on this increasingly explosive issue.

Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001)
It should first be noted that this case concerns a public or government employer, which means that the Fourth Amendment is brought into play. In the private sector, the Fourth Amendment has no application, but the most essential issue is the same in either case: the employee’s reasonable expectation of privacy.

An employee named Gary Leventhal worked in the Accounting Bureau of the New York Department of Transportation (DOT). The New York State Office of the Inspector General received an anonymous letter complaining of abuses in the DOT Accounting Bureau. The Office of the Inspector General referred the letter to the DOT, which decided that an investigation should be conducted by the DOT’s Office of Internal Audit.

The letter made various allegations of abuse and incompetence. Although the letter didn’t use employee names, it did contain certain identifying information. For example, it accused a “grade 27″ employee of being late every day, working on personal business, and using his DOT computer for personal matters. The only grade 27 employee in the office was Leventhal. It was known by the DOT that Leventhal had a private tax practice. The DOT had approved of this outside work as long as Leventhal made up any time he missed due to his tax practice on the weekends or after normal work hours.

When the Office of Internal Audit began its investigation, it decided it would review telephone records, computer records and Internet logs. After office hours, the investigators entered Levelthal’s office through an open door, turned on his DOT computer, and reviewed the directories of files on the computer’s hard drive. There was no power-on password to gain access to Leventhal’s computer, but once the computer was turned on, some of the menu selections that appeared were password-protected. In order to perform their search, the investigators used a disk which allowed the computer to start up without encountering the menus normally found there.

The investigators printed out a list of files, including the names of “hidden” files on Leventhal’s computer. These files contained a type of drawing program and a program suspected of containing tax software. On the non-hidden files, the investigators found other non-standard software having nothing to do with Leventhal’s job.

After reviewing the computers of other management officials of the Accounting Bureau, the investigators decided to conduct three additional searches of Leventhal’s computer to determine whether the hidden files were, in fact, a tax preparation program that Leventhal might be using in his outside business. They copied the program onto a laptop computer, obtained additional printouts of file directories, and opened some of the files to examine the contents. They noticed there had been work done on one of the suspected files since the last search, and this program turned out to be a tax preparation program.

Leventhal was charged with misconduct, and a hearing was scheduled to examine the allegations against him. Before the hearing could be completed, the DOT and Leventhal settled their dispute with an agreement that Leventhal would be penalized 30 work days leave without pay. Four days after reaching the settlement, Leventhal filed suit in district court alleging that the DOT had violated his Fourth Amendment rights by searching his computer. The district court dismissed Leventhal’s lawsuit without a trial.

On appeal, Sotomayor ruled that the Fourth Amendment protects public or government employees from unreasonable searches conducted by their employer, acknowledging, however, that public or government employers may dispense with probable cause and warrant requirements when conducting workplace searches related to investigations of work-related misconduct. According to Sotomayor, these situations require a careful balancing of governmental and private interests.

The fundamental consideration of this balancing process is whether the employee had a reasonable expectation of privacy. Since the DOT had no policy or practice concerning the searches of computers, Leventhal had a private office, and he didn’t allow others to have access to his computer, Sotomayor determined that Leventhal had a reasonable expectation of privacy in the contents of his office computer. Notwithstanding this determination, Sotomayor went on to rule that the DOT hadn’t violated Leventhal’s Fourth Amendment rights.

She said that an investigatory search for evidence of work-related misconduct is reasonable if it is justified and limited in scope. In this case, the DOT had a reasonable suspicion that Leventhal was engaged in work-related misconduct that involved his DOT computer. The initial search of his computer gave investigators more reason to suspect misconduct and was sufficient to justify the second search. Sotomayor also relied on the facts that the door to Leventhal’s office was open when the searches occurred, his computer was not protected by a power-on password, the searches were limited to ascertaining whether Leventhal was guilty of specific misconduct, and the investigators didn’t copy any files that seemed to have no connection to his outside tax business.

Analysis of Sotomayor’s Second Circuit Decision on Workplace Privacy
This is a significant case. It deals with the hot subject of privacy at work and Sotomayor’s ruling is markedly employer-friendly. Even though a reasonable expectation of privacy was found to exist, even though this involved a public or government employee whose privacy rights are greater than those of a private-sector employee, even though there were multiple searches, and even though the employer had no policy stating that it had the right to conduct such searches, Sotomayor ruled in favor of the employer.

Two important findings by Sotomayor gave her the ammunition to make this ruling, which all employers should keep in mind. First, the employer had reasonable suspicion of misconduct on the part of an employee. Second, the scope of the search was limited to the specific misconduct of which the employee was suspected.

Next, we’ll look at Sotomayor’s decisions concerning the Employee Income Retirement Security Act (ERISA).