What's OK in office communications? It's not always clear - Omaha.com
Published Sunday, June 10, 2012 at 12:30 am / Updated at 7:35 am
What's OK in office communications? It's not always clear

Click here for a guide to what's private and what's not in workplace communication.

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If you've grown attached to your work computer or mobile device to keep you personally connected throughout the day, don't get too comfortable with the idea of privacy.

Nancy Sebring, who resigned both the Des Moines and Omaha superintendent posts over her sexually explicit emails, provides an explosive example of how not to use a work computer and work email account.

But far less scandalous emails can get an employee in hot water, because the line covering what's allowed or appropriate isn't always clear.

Despite the prevalence of email over the past 15 years, the issue of employee privacy in workplace communications is still evolving in society, on the job and in the courts. The matter is becoming even more pressing as people connect to work-issued smartphones 24/7 and, for the sake of convenience or cost, use them as all-in-one personal and professional communication devices.

But one expert cautions that people should rethink that practice.

“If you're really concerned about keeping information private, it's best to use your own equipment,” said Kurt Opsahl, senior staff attorney with the Electronic Frontier Foundation in San Francisco.

The most recent U.S. Supreme Court decision on the issue came in 2010. In a sign of how much remains to be resolved, the case involved a pager.

The case, out of Ontario, Calif. — involving a police officer's use of a city-issued device — bears some resemblance to the Sebring episode.

The officer was sending sexually explicit text messages over his work pager, and his superiors disciplined him when they discovered the messages. The Supreme Court sided with the City of Ontario.

But the justices resolved the case based only on whether the officer's employer had grounds to look into his pager usage. The justices passed on settling the question of an employee's expectation of privacy, saying they needed to be cautious and not issue a far-reaching decision.

“Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior,” the court said. “At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve.”

A number of different factors could come to bear on whether an employee's workplace communications are private, said Ken Wentz, an Omaha attorney with the workplace law firm Jackson Lewis LLP.

Sebring's situation is perhaps the most clear and most out of bounds: an employee using work email for personal use, and sending long, sexually explicit messages at that, in violation of the employer's policy.

But if employees use their personal email account, even if on their work computer, they can expect those emails to remain private, Wentz said. Still, those messages must be sent from a password-protected email account, which keeps an employer from accessing them under federal law, he said.

Mobiles, BlackBerrys and smartphones can present their own gray areas. Text messages, for instance, are probably not in a password-protected account, so an employer would be able to access them, Wentz said.

But what if an employee owns his or her mobile, but the company pays part of the monthly bill? Work emails would not be private, he said, but private email accounts would. And text messages would more likely be private, he said.

In any situation, it's important for the employer to have a written policy spelling out expectations. Without that policy, the privacy rules that might apply can become muddied.

“On some fronts, it's clear,” Wentz said. “And on some fronts, it's absolutely not.”

In Sebring's case, records provided to The World-Herald by the Des Moines Public Schools show that the superintendent was advised on an unrelated matter about using her work email.

Sebring applied in March for the Omaha Public Schools superintendent position and communicated with OPS's search consultant about her application.

In one email, a representative from consultant Hazard, Young, Attea & Associates wrote to Sebring that the firm has “become concerned by applicants using district emails” and consultants then were not able to contact them over that work email.

“Please consider changing to your personal email address,” the consultant urged.

Over the following weeks, Sebring carried on an affair with a married man, using her official Des Moines Public Schools account to trade racy emails. Des Moines officials found the emails while responding to a public records request from The World-Herald and considered the emails a violation of the district's Internet-usage policy.

On May 9, the Des Moines school board chairwoman confronted Sebring, who offered to resign weeks before her scheduled end date in Des Moines. The situation became public June 1, and within 24 hours, the Omaha school board accepted Sebring's resignation as Omaha superintendent.

Sebring has gone to court in an attempt to block release of additional emails, arguing that they are purely personal. At the same time, she has apologized and acknowledged that carrying on personal conversations via email was unacceptable.

Depending on an employer's rules, it may not be possible for employees to simply log into their personal email account.

With the exception of the district's own email, OPS's policy says it will block access to personal email, social networking sites and other forms of direct electronic communication.

The University of Nebraska has opened up its computers for limited personal use. Its universitywide policy, for instance, equates Internet use with local phone calls.

But it cautions that privacy is not guaranteed in instances of a data breach, a public records request or a university investigation into misuse.

The issues are evolving at private employers too.

At online stockbrokerage TD Ameritrade, as of about a year ago, employees couldn't get access to any of their personal email accounts, such as accounts with Google Mail, Yahoo and Hotmail, said Kim Hillyer, the company's director of communications.

But employees, who also couldn't use their work email for personal use, felt shut off from some necessary personal connections, Hillyer said. They sometimes needed to hear from their spouse or their child's school, she said, but had no way of doing so.

TD Ameritrade revised its policy to let employees use their work emails for personal use when necessary and appropriate.

“If you need to email your husband and say ‘Can you pick up the kids from day care tonight? I'm going to be late,' absolutely, you can do that,” Hillyer said.

The same rules generally apply to company-issued laptops and mobile devices, she said.

While some companies forbid extensive personal use of the company laptops and smartphones that go home with employees every night, many employees use those devices for that very purpose.

Bruce Stec, a partner with human resources firm Ellison Partners and president of the Human Resource Association of the Midlands, said the line between people's work and private lives has become blurred by the prevalence of mobile devices.

In some respects, employees can be constantly working, even while at home, Stec said. From an employer's standpoint, he said, a company needs to look at its own culture, decide what's acceptable and make that known to its employees.

But for employees using a work-owned device, Stec advised keeping personal use separate.

“Your personal life needs to stay off of it,” he said. “It is a tool for your position that is provided to you by your employer, and that's what it should be utilized for.”

Still, Opsahl said he hopes employers give their workers some leeway to handle personal matters in private while on the job.

“To have a good environment for your employees, you should give them the breathing room to do that.”

World-Herald staff writer Jonathon Braden contributed to this report.

Contact the writer: 402-444-1128, jeff.robb@owh.com


GUIDE TO WHAT'S PRIVATE AND WHAT'S NOT

The issue of employee privacy in email is continuing to evolve in society, the workplace and the courts. For employers, it's important to have a policy spelling out what is considered appropriate or out of bounds. Without such a policy, the rights for an employer become less clear. For employees, here is some guidance about what's private and what's not.

Employer-owned computer

Work email account

Not private: If you work for a state agency or local government, emails might be subject to state open records laws. The same situation applies for use of a work email account through an employer-owned mobile device.

Personal email account

Private if in a password-protected account.

Employer-owned mobile device

Personal email account

Private if in a password-protected account.

Text messages

Not private if not in a personal, password-protected account.

Employer pays part of monthly bill

Not private for work email.

Private for personal, password-protected email account.

Texts more likely private for employees.

Source: Omaha attorney Ken Wentz of Jackson Lewis LLP

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